* DEC 1 7 1998
NORTH CAROLINA
PUBLISHED BY
The Office of Administrative Hearing^r-^^^^^^^^
Rules Division
PO Drawer 27447
Raleigh, NC 27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
[■ i lllM I I H WHIIiWUaMJWgBffJaWCK>M^fMWiMlftrtW.tf«»-i«^wt*>.u*twTr«»m~^.~-— ,.,1 ■ ^
liUiBttHaiBaai
For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its i
components, consult with the agencies below. The bolded headings are typical issues which the given
agency can address, but are not inclusive.
Rule Notices. Filings., Register^l^adnniMrCopiiMof Proposed Rules, etc.
Office of Administrative Hearings^
Rules Division y^''^'^' ."x'^A
Capenjrt-Crockcr House f V/^- \....,....-:r::::r=l!51i?) 2^3-2678'^
424 North Bloimfstreet ^^
Raleigh, North Carolina 2760l48r7
(PipjTTsa-smj'AX
^:^^K|>S?
contort j/Molly^|^«Bich,;Diredtdr APA Servi6es
// / Ruby GreechjiPublications Coordinator
///^^ // 4 „
ffi
//
Fiscal Notes & Economic Analysis '
// pflfice of State Budget and Managwnent
' /ll 6 West Jones Street
Raleigh, North Carolina 27603-8005
i i I contact: M^arren Plonk
!Rule Review and Legal Issues
1 1 \ Rules Review Commission
\| 1 1307 Glenwood Ave., Suite 159
W maileigh. North Carolina 27605
\\\ V ^' V\ ;:
\lContact: Joe DeLuca Jr., StafFDirector Counsel
mmasich@oah
rcreech@oah.state.
,(919)733-7061^
(9i9) 733-0640 FAX
jvplonk@osbm. state J1C.US
Bobby Biyan, Staff Attorney ,
Legislative Process ConcerriinglRuIe^maklng s CJ
Joint Legislative Administrative Procedurepversight Cpmmittee
545 Legislative Office Buildiiijg
300 North Salisbmy^trs^f ^ '~*''^%::::::>..^ (919)733-257J
Raleigh, North Carolina 27611"" "" ' ^
contact: Mary ShupiQg,^t^
County and Municipality GoveninifeiitOuestions or Notification
NC Association of County Commissioners
2 1 5 North Dawson Street (9 1 9) 7 1 5-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
2 1 5 North Dawson Street (9 1 9) 7 1 5-4000
Raleigh, North Carolina 27603
contact: Paula Thomas
^eS!"™-
(919)733^?2ia
(919) 733-9415 FAX
«
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
I. IN ADDITION
Voting Rights Letters
941 -942
II. RULE-MAKING AGENDA
Environment and Natural Resources
Environmental Management/Air Quality . . . 943 - 946
Land Resources/Land Quality 943 - 946
Water Resources/Planning 943 - 946
Volume 13, Issue 12
Pages 941 - 1037
m. PROPOSED RULES
Environment and Natural Resources
Wildlife Resources Commission 948 - 975
Health and Human Services
Medical Assistance 947 - 948
December 15, 1998
This issue contains documents officially filed
through November 20, 1998.
IV. TEMPORARY RULES
Environment and Natural Resources
Coastal Resources Commission 976 - 979
Environmental Health 979
Health Services 979-988
Well Contractors Certification Commission . 988 - 994
V. RULES REVIEW COMMISSION 995 - 1007
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh, NC 2761 1-7447
(919)733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich. Director of APA Services
Ruby Creech, Publications Coordinator
Jean Shirley, Editorial Assistant
Linda Dupree. Editorial Assistant
Jessica Flowers, Editorial Assistant
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1008 - 1014
Text of Selected Decisions
98 CPS 0427 1015 - 1017
98DHR0244 1018-1034
98DHR0245 1018-1034
98DHR0247 1018-1034
98 ELS 0047 1035 - 1037
VIL CUMULATIVE INDEX 1-68
Sorth Carolina Register is published semi-monthK for $195 per year b\ the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC
27601. (ISSN 15200604) to mail at Periodicals Rates IS paid at Raleigh. NC- P0STN4ASTER; Send Address changes to the \orih Carolina Register.
PO Drawer 27447. Raleiah. NC 2761 1-7447,
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when
appropriate. ^___^__
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE
DEPARTMENT
LICENSING BOARDS
CHAPTER
I
Administration
Acupuncture
1
2
Agriculture
Architecture
2
3
Auditor
Athletic Trainer Examiners
3
4
Cominerce
Auctioneers
4
5
Correction
Barber Examiners
6
6
Council of State
Certified Public Accountant Examiners
8
7
Cultural Resources
Chiropractic Examiners
10
8
Elections
Employee Assistance Professionals
11
9
Governor
General Contractors
12
10
Health and Human Services
Cosmetic Art Examiners
14
11
Insurance
Dental Examiners
16
12
Justice
Dietetics/Nutrition
17
13
Labor
Electrical Contractors
18
14A
Crime Control & Public Safet>
Electrolysis
19
15A
Environment and Natural Resources
Foresters
20
16
Public Education
Geologists
21
17
Revenue
Hearing Aid Dealers and Fitters
22
18
Secretarv of State
Landscape Architects
26
19A
Transportation
Landscape Contractors
28
20
Treasurer
Marital and Famih Therapy
31
*21
Occupational Licensing Boards
Medical Examiners
32
22
Administrative Procedures (Repealed)
Midwifery Joint Committee
33
23
Community Colleges
Mortuary Science
34
24
Independent Agencies
Nursing
36
25
State Personnel
Nursing Home Administrators
37
26
Administrative Hearings
Occupational Therapists
38
27
NC State Bar
Opticians
40
Optometry
42
Osteopathic Examination & Reg. (Repealed)
44
Pastoral Counselors. Fee-Based Practicing
45
Pharmac\
46
Physical Therapy Examiners
48
Plumbing. Heating & Fire Sprinkler Contractors
50
Podiatn. Examiners
52
Professional Counselors
53
PsNchologv Board
54
Professional Engineers & Land Surveyors
56
Real Estate Appraisal Board
57
Real Estate Commission
58
Refrigeration Examiners
60
Sanitarian Examiners
62
Social Work Certification
63
Soil Scientists
69
Speech & Language Pathologists & .'\udiologists
64
Substance .Abuse Professionals
68
Therapeutic Recreation Certification
65
Veterinarv Medical Board
66
Note: Title 21 contains the chapters of the various occupational licensing boards.
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INADDITION
This Section contains public notices that are required to be published in the Register or have been approved by the Codifier
of Rules for publication.
U.S. Department of Justice
Civil Rights Division
Voting Section
PO. Box 66128
Washington, D.C. 20035-6128
October 27, 1998
EJ:VLO:TGL:emr
DJ 166-012-3
98-1927
98-1966
Susan K. Nichols, Esq.
Special Deputy Attorney
P.O. Box 629
Raleigh, North Carolina 27602-0629
Dear Ms. Nichols:
This refers to Session Law 1997-265, which provides for a November 3, 1998, special referendum election to allow voters
to decide if they want the right to petition to change by referendum the method of election for the county commission and school board
of Beaufort County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C.
1973c. We received your response to our July 27, 1998, request for additional information on August 28, 1998.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes.
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Session Law 1997-265, includes provisions that are enabling in nature. Therefore, Beaufort County is not relieved of its
responsibility to seek Section 5 preclearance of any changes affecting voting proposed to be implemented pursuant to this legislation
(e.g. . special elections, methods of election). Sec 28 C.F.R. 51.15.
Sincerely,
Elizabeth Johnson
Chief, Voting Section
13:12
NORTH CAROLINA REGISTER
December 15, 1998
941
INADDITION
U.S. Department of Justice
Civil Rights Division
EJ:VLO:TGL:par Voting Section
DJ 1 66-0 1 2-3 PO. Box 66128
98-3071 Washington. DC. 20035-6128
October 23. 1998
Susan K. Nichols, Esq.
Special Deput>' Attorney General
P.O. Box 629
Raleigh, North Carolina 27602-0629
Dear Ms. Nichols:
This refers to Session Law 1998-132. which schedules the November 3. 1998. special bond election for the State of North
Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your
submission on September 11. 1998.
The Attorney General does not interpose any objection of the specified change. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change.
See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ).
Sincerely,
Elizabeth Johnson
Chief, Voting Section
942 NORTH CAROLINA REGISTER December 15, 1998 13:12
R ULE-MAKING A GENOA
An agency may choose to publish a rule-making agenda which serves as a notice of rule-making proceedings if the agenda
includes the information required in a notice of rule-making proceedings. The agency must accept comments on the
agenda for at least 60 days from the publication date. Statutory reference: G.S. 150B-21.2.
TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
This agenda will serve as the notice of mle-making proceedings for the following rule-making bodies from December 15, 1998
through February 15, 1999:
Environmental Management Commission to rules codified in 1 5 A NCAC 2;
Land Resources Commission to rules codified in 1 5 A NCAC 4;
Commission for Health Services to rules codified in 15A NCAC 18A;
APA #: E2706
SUBJECT: Exemptions
RULE CITATION #: 15A NCAC 2Q .0702
STATUTORY AUTHORITY: G.S. 143-215.3(a)(I); 143-215.108; I43B-282; S.L. 1989, C. 168, S. 45
DIVISION/SECTION: AIR QUALITY
DIVISION CONTACT: Thom Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 9/22/98
DURATION OF RULE: Permanent 4/1/00
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To exempt wood ftimiture manufacturing operations covered imder 40 CFR Part 63, Subpart J J, from the air toxic rules.
SCOPE/NATURE/SUMMARY :
The American Furniture Manufacturers Association (AFMA) has asked that the air toxic rules be revised to exempt wood
furniture operations covered under the maximum achievable control technology (MACT) requirements. (Maximum
achievable control technology requirements for wood furniture are in 40 CFR Part 63, Subpart JJ, National Emission
Standards for Wood Furniture manufacturing Operations. This Subpart regulates emissions of hazardous air pollutants from
solvent usage in wood frimiture manufacturing operations.) The AFMA argues that emissions of toxic air pollutants from
furniture facilities do not result in any acceptable ambient level being exceeded. It bases its argument on ambient monitoring
done by the Division of Air Quality in Lenoir. That study did not show any exceedances of the air toxic acceptable ambient
levels. This study was done before the application of MACT; therefore, after MACT is applied the ambient values should
be lower
The Department has agreed to consider this request. However, the AFMA must show by modeling that the emissions from
the largest furniture facility in the State do not cause any acceptable ambient level for any toxic air pollutant to be exceeded.
If the modeling results shows that the acceptable ambient levels are not exceeded. Rule 15A NCAC 2Q .0702, Exemptions,
could be amended to exempt furniture operations subject to 40 CFR Part 63, Subpart JJ. The exemption may be worded such
that furniture facilities not required to comply with Subpart JJ could choose to be covered under Subpart JJ and thereby
qualify for the exemption.
APA #: E2714
SUBJECT: Activities Exempted form Permit Requirements
RULE CITATION #: 15A NCAC 2Q .0102
STATUTORY AUTHORITY: G.S. 143-2 15.3(a)(1); 143-215. 107(a)(4) 143-215.108
DIVISION/SECTION: AIR QUALITY
DIVISION CONTACT: Thom Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 10/5/98
DURATION OF RULE: Permanem 7/1/00
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION:
To add a permit exemption for small wood-fired combustion sources.
SCOPE/NATURE/SUMMARY:
13:12 NORTH CAROLINA REGISTER December 15, 1998 943
R ULE-MAKING A GENOA
Currently. Rule 1 5 A NCAC 2Q .0 1 02, Activities Exempted from Permit Requirements, does not exempt small wood-fired
combustion sources, such as space heaters and small boilers. Wood-fired combustion sources are not eligible for the
miscellaneous exemption. The addition of an exemption for small wood-fired boilers is being considered. The exemption
could be based on heat input or size of the combustion chamber. Another approach would be to allow these sources to use
the miscellaneous exemption. This proposal is in keeping with the Department's policy of minimizing permitting of
insignificant sources.
APA #: E2715
SUBJECT: Permissible Open Burning without a Permit
RULE CITATION #: 1 5 A NCAC 2D . 1 903
STATUTORY AUTHORITY: G.S. 143-215.3(a)(l ); 143-215. 107(a)(5)
DIVISION/SECTION: AIR QUALITY
DIVISION CONTACT TEL#: (919)733-1489
DIVISION CONTACT: Thorn Allen
DATE INITIATED: 10/5/98
DURATION OF RULE: Permanent 7/1/00
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To add that open burning for land clearing or right-of-way maintenance will not create a nuisance.
SCOPE/NATURE/SUMMARY :
Rule 15A NCAC 2D .1903, Permissible Open Burning Without a Permit, would be amended to add to the conditions that
must be met for open burning for land clearing or right-of-way maintenance that the burning does not create a nuisance. This
requirement already exists for burning leaves and yard trimmings at private residences. Extending this condition to land
clearing and right-of-way maintenance burning should reduce the number of complaints and problems associated with this
type of burning. If such burning does cause a nuisance, the Division of Air Quality would have much more leverage to cause
the problem to be corrected with this language in the rule. Currently, the Division must rely on persuasion and the desire
of the burner not to cause a nuisance to correct nuisance problems when the burning is other wise performed according to
the rule.
APA #:E2716
SUBJECT: Control of Emissions from Incinerators
RULE CITATION #: I5A NCAC 2D .1200
STATUTORY AUTHORITY: G.S. 143-213; I43-215.3(a)(l); 143-215. 107(a)(3),(4),(5)
DIVISION/SECTION: AIR QUALITY
DIVISION CONTACT: Thorn Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 10/5/98
DURATION OF RULE: Permanent 7/1/00
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To amend the incinerator rules to require hazardous waste incinerators to comply with the conditions set under 40 CFR
270.32(b)(2).
SCOPE/NATURE/SUMMARY :
The incinerator rules would be amended to require hazardous waste incinerators to comply with conditions, such as emission
limitations and operational specifications, determined as necessary to protect human health and the environment under 40
CFR 270.32(b)(2). These conditions are established from a site specific risk assessment and are determined by the Division
of Waste Management. (40 CFR 270.32 establishes RCRA permit conditions.) This rule change is being made in
anticipation of the maximum achievable control technology (MACT) rule for hazardous waste combustors. This MACT
combines both air pollution control requirements and hazardous waste management requirements.
APA #:E2717
SUBJECT: Control of Emissions from Incinerators
RULE CITATION #: 15A NCAC 2D .1200
STATUTORY AUTHORITY: G. S. 143-213: 143-215.3(a)(l); 143-215. 107(a)(3),(4).(5)
944 NORTH CAROLINA REGISTER December 15, 1998 13:12
R ULE-MAKING A GENOA
DIVISION/SECTION: AIR QUALITY
DIVISION CONTACT: Thorn Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 10/5/98
DURATION OF RULE: Permanent 7/1/00
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To clarify the incinerator rules by reorganizing the incinerator rules by type of incinerator
SCOPE/NATURE/SUMMARY :
Section 1 5 A NCAC 2D . 1 200. Control of Emissions from Incinerators, is currently organized by requirements: test methods
and procedures, reporting and recordkeeping, emission standards, operational standards, excess emissions and start-up and
shutdown, operator training and certification, and compliance schedules. This organization worked well when the
requirements were few, similar, and relatively simple for the various kinds of incinerators. However, since these rules were
adopted, the EPA has promulgated requirements for sewage sludge incinerators, municipal waste combustors, and hospital,
medical, and infectious waste incinerators. These requirements are often complex and detailed. Incorporating these
requirements into Section ISA NCAC 2D .1200 has made the incinerator rules overly convoluted. The reorganized rules
would contain a rule for each type of incinerator. They would include rules for hazardous waste incinerators, sludge
incinerators, municipal waste combustors, hospital, medical, and infectious waste incinerators, and other types of
incinerators.
APA #: E2718
SUBJECT: Animal Operation Odor Control
RULE CITATION #: 15A NCAC 2D (New rule or section)
STATUTORY AUTHORITY: G.S. I43-2I5.3(a)(I); 143-215. 107(a)(Il)
DIVISION/SECTION: AIR QUALITY
DATE INITIATED: 10/5/98
DURATION OF RULE: Permanent 7/1/00
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
DIVISION CONTACT: Thom Allen
DIVISION CONTACT TEL#: (919)733-1489
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To control odorous emissions from animal operation.
SCOPE/NATURE/SUMMARY :
A new rule or a section of new rules would be adopted to control odors from animal operations. House Bill 515 requires
the Environmental Management Commission to adopt a temporary rule by March 1, 1999. to regulate the emission of odors
from animal operations. The temporary rule and permanent rule may be the same or they may differ.
Several options are being considered. One would specify in detail the type of best management or work practices and the
use of odor control devices. Under this option work practices would be required; if they failed, odor control devices would
be required. Another option would specify' a percent reduction in odorous emissions. This option could also be a two-tier
approach. It could require a certain percentage of reduction initially. If this reduction failed to eliminate odor problems,
then a higher degree of reduction would be required. A third approach would be to establish an acceptable ambient level
in terms of odor units. If emissions from an animal operation caused this ambient level to be exceeded, it would have to
reduce emissions until the ambient level are met. Besides these three options, other options may be considered and adopted.
These requirements could be applied to all animal operations or only to those with odor problems. Furthermore, new
operations may have different or additional requirements. The requirements would be based on "Confrol of Odor Emissions
from Animal Operations" prepared by the Odor Control Report Task Force. Not all the recommendation in this report may
be used, and requirements not identified in this report may be imposed.
APA #: E2723
SUBJECT: Change in procedure for assessing civil penalties under SPCA
RULE CITATION #: 15A NCAC 4C .0007
STATUTORY AUTHORITY:
DIVISION/SECTION: LAND RESOURCES/LAND QUALITY
DIVISION CONTACT: Bobbie Jo Moore
]3:12 NORTH CAROLINA REGISTER December 15, 1998 945
R ULE-MAKING A GENOA
DIVISION CONTACT TEL#: (919)733-3833
DATE INITIATED: 10/21/98
DURATION OF RULE: Permanent 8/1/00 g
TYPE OF RULE: fj
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
The Sedimentation Control Commission proposes a change to 15A NCAC 4C .0007(a) that will enable a civil penalty
assessment for the initial violation of beginning a land-disturbing activity prior to obtaining an approved erosion and
sedimentation control plan. This proposal is part of a Plan of Action adopted by the Commission to aid in strengthening the
Sedimentation Pollution Control Act of 1973.
SCOPE/NATURE/SUMMARY :
CurrentK the Sedimentation Pollution Control Act requires that a Notice of Violation must be issued and a time limit for
compliance be given for violations of the Act. Historv' indicates that land-disturbing activities are begun without prior plan
approval and then a plan is onl\ submitted once a Notice is issued. This change will enable civil penalts' assessments for
the initial violation of beginning a land-disturbing activity without an approved plan. This action is necessary because at
times sediment damage could be lessened if a plan is approved and implemented on the site.
(
(
946 NORTH CAROLINA REGISTER December 15, 1998 13:12
PROPOSED RULES
This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60
days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S.
150B-21.2.
TITLE 10- DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2
that the DHHS-Division of Medical Assistance intends to
amend the rule cited as 10 NCAC 26H . 0401. Notice of Rule-
making Proceedings was published in the Register on July 15,
1998.
Proposed Effective Date: August 1, 2000
A Public Hearing will be conducted at 1:30 p.m. on December
30, 1998 at the Kirby Building, Room 132, 1985 Umstead Drive,
Raleigh, NC.
Reason for Proposed Action: To reimburse Medicaid
allowables utilizing updated Resource Based Relative Value
System (RBRVS).
Comment Procedures: Written comments concerning this
rule-making action must be submitted by January 14, 1999 to
Portia W. Rochelle, Rule-making Coordinator Division of
Medical Assistance, 1985 Umstead Drive, Raleigh, NC 27603.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. This Rule does not
have a substantial economic impact of at least five million
dollars ($5,000,000) in a 1 2-month period
CHAPTER 26 - MEDICAL ASSISTANCE
SUBCHAPTER 26H - REIMBURSEMENT PLANS
SECTION .0400 - PROVIDER FEE SCHEDULES
.0401 PHYSICIAN'S FEE SCHEDULE
(a) Effective January 1. 1995, (see Paragraph (b) of this Rule)
physicians" services whether furnished in the office, the patient's
home, a hospital, a nursing facility or elsewhere will be
reimbursed based on the North Carolina Medicaid Fee Schedule,
except for payments to the various Medical Faculty Practice
Plans of the University of North Carolina - Chapel Hill and East
Carolina University which will be reimbursed at cost and cost
settled at year end. Effective January _L 1998 . the The North
Carolina Medicaid Fee Schedule is based on the Medicare Fee
Schedule Resource Based Relative Value System (RBRVS). in
effect in fiscal year 1993 1997 (as adopted by Medicare at 56
F.R. 59501 (November 25, 1991, effective January L 1992,
applicable to services furnished beginning January F, 1992), but
with the following clarifications and modifications:
( 1 ) A maximurr - re is established for each service and is
applicable to all specialties and settings in which the
service is rendered. Payment is equal to the lower of
the maximum fee or the providers customary charge
to the general public for the particular service
rendered.
(2) Fees are established on a statewide basis using the
Medicare Geographic Practice Cost Indices for North
Carolina.
(3) There will be no transition period in applying the
Medicaid fees whereas Medicare has a five year
phase-in period.
(4) Annual changes in the Medicaid payments will be
applied each January 1 and fee increases will be
applied based on the forecasted Gross National
Product (GNP) Implicit Price Deflator. Said annual
changes in the Medicaid payments shall not exceed
the percentage increase granted by the North Carolina
General Assembly.
(5) Fees for services deemed to be associated with
adequacy of access to health care services may be
increased based on administrative review. The service
must be essential to the health needs of the Medicaid
recipients, no other comparable treatment available
and a fee adjustment must be necessary to maintain
physician participation at a level adequate to meet the
needs of Medicaid recipients. A fee may also be
decreased based on administrative review if it is
determined that the fee may exceed the Medicare
allowable amount for the same or similar services, or
if the fee is higher than Medicaid fees for similar
services, or if the fee is too high in relation to the
skills, time, and other resources required to provide
the particular service.
(6) Fees for new services are established based on this
Rule, utilizing the most recent RBRVS, if applicable.
If there is no relative value unit (RVU) available from
Medicare, fees will be established based on the fees
for similar services. If there is no RVU or similar
service, the fee will be set at 75 percent of the
provider's customary charge to the general public.
(b) This reimbursement limitation shall become effective in
accordance with the provisions of G.S. 108A-55(c). These
changes to the Physician's Fee Schedule allowables will become
effective when the Health Care Financing Administration, U. S.
Department of Health and Human Services, approves
amendment to HCFA by the Director of the Division of Medical
Assistance on or about January 1, 1998 as #MA 98-07, wherdn
the Director proposes amendments of the State Plan to amend
Physician's Fee Schedule.
13:12
NORTH CAROLINA REGISTER
December 15, 1998
947
PROPOSED RULES
Authorir\-G.S. 108A-25(b).
TITLE ISA - DEPARTMENT OF
EN.VIRONMENT AND NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 1 50B-21 .2
that the North Carolina Wildlife Resources Commission
intends to amend the rule cited as 15A NCAC lOB .0105. Notice
of Rule-making Proceedings M'as published in the Register on
October 1. 1998.
Proposed Effective Date: July 1. 2000
A Public Hearing will be conducted at 10:00 a.m. on January'
11. 1999 at the Archdale Building, 3"' Floor Conference Room.
512 N. Salisbury St. Raleigh. .\C.
Reason for Proposed Action: To set/amend the rule for
MIGRATORY GAME BIRDS in order to delineate the area of an
experimental September teal season. Delineation of the area of
the September teal season is necessary to properly manage and
conserve wildlife resources. This proposed rule change is based
on the Federal FrameM'orks for 1998-99 Early Hunting on
Certain Migratory Game Birds published by the Department of
the Interior
Comment Procedures: Interested persons may present their
views either orally or in Mriting at the hearing. In addition, the
record of hearing will be open for receipt of written comments
from December 15. 1998 to January 14. 1999. Such written
comments must be delivered or mailed to the NC Wildlife
Resources Commission. 512 N. Salisbury' Street. Raleigh. North
Carolina 2-604-1188.
Fiscal Note: These Rules do not affect the expenditures or
revenues of state or local government finds. These Rules do not
have a substantial economic impact of at least five million
dollars (S5. 000.000) in a 1 2-month period.
CHAPTER 10 - WILDLIFE RESOURCES AND
WATER SAFETY
SUBCHAPTER lOB - HUNTING AND TRAPPING
SECTION .0100 -GENERAL REGULATIONS
.0105 MIGRATORY GAME BIRDS
(a) Cooperative State Rules
{ 1 ) The taking of sea ducks (scoter, eider and old squaw)
during an% special federal K-announced season for
these species shall be limited to the waters of the
Atlantic Ocean, and to those coastal waters south of
US 64 which are separated by a distance of at least
800 >ards of open water from an\ shore, island or
marsh.
(2) The extra daiK bag and possession limits allowed b\
the federal regulations on scaup apply in all coastal
waters east of U.S. Highway 17, except Currituck
Sound north of US 158.
(3) Tundra swans may be taken during the open season by
permit only subject to limitations imposed by the U. S.
Fish and Wildlife Service. A limited number of
nontransferable swan permits will be issued by the
Wildlife Resources Commission to applicants who
will be selected at random by computer, and only one
swan may be taken under each permit which must be
cancelled at the time of the kill by cutting out the
month and day of the kill. Accompanying the permit
is a tag which must be affixed to the swan at the time
and place of the kill. The tag must be affixed in
accordance with instructions provided with the permit.
In addition, a preaddressed post-paid card is supplied
to each permittee on which to report the number of
da>s hunted and the details of the kill if made. It is
unlawful to hunt swans without having the permit and
the tag in possession or to possess a swan without the
cancelled permit in possession and the tag properly
affixed to the swan. It is unlawful to possess a swan
permit or tag while hunting that was assigned to
another person or to alter the permit or tag in any way
other than cutting out the proper month and day of
kill.
(4) Canada geese maj' be taken during the open season by
permit holders only subject to limitations imposed by
the U.S. Fish and Wildlife Service. Permits will be
issued by the North Carolina Wildlife Resources
Commission. It is unlawfijl to hunt or possess Canada
geese without having the permit in possession. It is
unlawful to possess a Canada goose permit while
hunting that was assigned to another person or to alter
the permit in any way.
(b) Notwithstanding the provisions of G.S. 1 1 3-29 1.1 (a) and
(b). the following restrictions apply to the taking of migratory
game birds:
( 1 ) No migratorv' game bird ma\' be taken:
(A) With a rifle:
(B) With a shotgun of anN description capable of
holding more than three shells, unless it is
plugged with a one-piece filler, incapable of
removal without disassembling the gun. so as
to limit its total capacity to not more than three
shells.
(2) No migratorv game bird ma\ be taken:
(A) From or by the use of a sinkbox or any other
type of low floating device affording the hunter
a means of concealment beneath the surface of
the water;
(B) With the aid of bait, or on. over or within 300
yards of an\ place where an\ grain, salt or
other feed is exposed so as to constitute an
attraction to migratorv game birds or has been
so exposed during an>' of the 10 consecutive
days preceding the taking, except that this Part
shall not appK to standing crops, flooded
948
NORTH CAROLINA REGISTER
December 15, 1998
13:12
caaMoaiBB aam
PROPOSED RULES
croplands, grain crops properly shocked on the
field where grown, or grains found scattered
solely as the result of normal agricultural
planting or harvesting;
(C) With the aid of live decoys, or on, over or
within 300 yards of any place where tame or
captive migratory game birds are present,
unless such birds are and have been for a
period of 10 consecutive days prior to such
taking confined within an enclosure which
substantially reduces the audibility of their
calls and totally conceals them from the sight
of wild migratory game birds.
(3) Waterfowl hunting and harassment and other
unauthorized activities shall be prohibited on posted
waterfowl management areas established by the
Wildlife Resources Commission for Canada Geese
and ducks restoration.
(4) In that area of Roanoke Sound adjacent to and
immediately Northeast of Roanoke Island as marked
by buoys designating the waterfowl rest area, it shall
be unlawful to harass or take any waterfowl.
(5) The area east of US \1_ shall be designated as an
experimental September teal season zone as
referenced by the Federal frameworks calling for state
rules designating experimental areas.
manage and preserve the resource.
ISA NCAC IOC .0107, .0205-.0206, .0305, .0401 - To
set/amend inland fishing regulations necessary^ to manage and
preserve the resource.
ISA NCAC lOD .0102:0103 - To set/amend game land
regulations necessary' to manage and preserve the resource.
Comment Procedures: Interested persons may present their
views either orally or in writing at the hearing. In addition, the
record of hearing will be open for receipt of written comments
from December 15, 1998 to February 11. 1999. Such written
comments must be delivered or mailed to the NC Wildlife
Resources Commission, 512 N. Salisbury Street, Raleigh, North
Carolina 27604-1188.
Fiscal Note: These Rules do not affect the expenditures or
revenues of state or local government funds. These Rules do not
have a substantial economic impact of at least five million
dollars (S5.000.000) in a 12-month period.
CHAPTER 10 - WILDLIFE RESOURCES AND
WATER SAFETY
SUBCHAPTER lOB - HUNTING AND TRAPPING
SECTION .0100 - GENERAL REGULATIONS
.4uthorit^■ G.S 113-134: 113-274:
C.F.R. 20.21: 50C.F.R. 20.105.
113-291.1: 113-291.2: 50
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Wildlife Resources Commission
intends to amend the rules cited as 15A NCAC lOB .0113,
.0202-.0203. .0205, .0209, .0212, .0302: 15A NCAC IOC .010\
.0205-.0206. .0305. .0401: 15A NCAC lOD .0102-.0103. Notice
of Rule-making Proceedings was published in the Register on
October 15. 1998.
Proposed Effective Date: July 1. 2000
A Public Hearing will be conducted at 7:00 pm on January 19,
1999 at the Southwestern Community College in Sylva, NC: on
January 20. 1999 at the Morganton Municipal Auditorium in
Morganton. NC: on January 21, 1999 at the Starmount High
School in Boonville, NC: on January 25, 1999 at the Courthouse
in Elizabethtown, NC: on January 26. 1999 at the Courthouse
in Graham. NC: on January 27, 1999 at the Central Dcnidson
Middle School in Lexington, NC: on February 1, 1999 at the
Swain Auditorium in Edenton. NC: on February 2. 1999 at the
Courthouse in New Bern, NC: on Februaiy 3, 1999 at the
Courthouse in Nashville, NC.
Reason for Proposed Action:
ISA NCAC 10B.0II3, .0202-.0203, .020S, .0209, .0212, .0302 -
To set/amend hunting and trapping regulations necessary to
.0113 BIG GAME KILL REPORTS
Th e carcass of each b e ar, wild turk e y, and d ee r ( e xc e pt
antl e rl e ss deor har\'e s t c d on ar e as in th e D ee r Manag e m e nt
A s sistanc e Program as d es crib e d in G.S. 113 291.2( e )) shall b e
tagg e d at th e s it e of th e kill with th e appropriat e big gam e tag
which has b ee n validat e d by cutting out th e month and day of th e
IV 1 i I .
All harv e sted b e ar, d ee r, wild turk e y, and wild boar must b e
r e gist e r e d at a Wildlif e Coop e rator Ag e nt or r e port e d through
th e toll free Big Game Tel e phon e R e porting System, b e for e th e y
ar e skinn e d or dr e ss e d or dismemb e red for consumption e xc e pt
in tho se ca se s wh e r e th e kill occurs in a r e mot e ar e a which
pr e v e nts th e animal from b e ing transported a s an entir e carcass.
In th ese cas e s, th e carca ss may b e tagged, skinned, quart e r e d,
and transport e d to th e Wildlif e Cooperator Agent for r e porting
or r e port e d within 2 4 hours through the Big Game T e l e phon e
R e porting Syst e m. A Wildlif e Coop e rator Ag e nt locat e d within
th e immediat e ar e a of op e n s e ason shall supply an authorization
number or an authorization numb e r may b e obtain e d through th e
Big Game Telephone R e porting Sy s t e m. — Th e tag shall b e
affixed to the carcass at a location and in s uch mann e r as to be
vi s ibl e upon insp e ction from th e outside, and it is unlavvftil to
affix th e tag at any location or in any manner so as to conc e al it
from visibility upon ordinary in s pection. — It is unlawful to
remove th e tag from th e carca s s prior to th e kill being prop e rly
r e ported e ith e r through a Wildlif e Coop e rator Agent or through
th e Big Gam e T e l e phon e Reporting Syst e m or at any tim e
th e r e aft e r until th e carcas
finally skinn e d or dr e ss e d for
consumption. Th e authorization numb e r giv e n through th e Big
Gam e T e l e phon e R e porting Syst e m or a Wildlife Cooperator
13:12
NORTH CAROLINA REGISTER
December 15, 1998
949
PROPOSED RULES
Agent must b e r e cord e d on th e appropriat e lin e of th e hunt e r's
Big Game Hao i ' e st Authorization R e cord provid e d with th e ir
lic e ns e and shall th e r e aft e r constitut e his p e rmit to continu e in
poss e ssion of th e carcass. Oth e rwis e , th e continued poss e ssion
of th e b e ar, wild turk e y, d ee r or wild boar shall b e unlawful.
Persons who are by law e xempt from th e big game hunting
lic e n se arc not required to tag th e carcass but shall report each
kill a s abov e r e quired, and. in li e u of th e tag and Big Gam e hunting license number, and
authorization for continued possession of the carcass. Possession
of a harvested bear, deer, wild boar, or wild turkey without a
validated Big Game Harvest Report Card including the
authorization number obtained from a Wildlife Cooperator
Agent shall be unlawful.
(d) Persons killing a big game animal
unattended must identify the carcass
the
and
with
date of
leaving it
their name, their
kill or with the
Harv e st Authorization R e cord, the hunt e r shall r e cord th e
authorization numb e r and retain it to th e r e aft e r constitut e his
p e rmit to continu e in po sse ssion of the carcass. — TTi e word
" e x e mpt" tog e th e r with th e r e a s on th e r e for (par e nt's lic e ns e -
landown e r, agricultural l e ss ee ) s hall b e v i Titt e n on the hunter's
record and th e r e gistration form at th e Wildlif e Coop e rator
Ag e nt.
P e r s on s killing a doer under the Doer Manag e ment Assistanc e
Program and not r e quir e d to us e th e tag provided with th e Big
Gam e Lic e nse must not r e cord th e ir authorization number on th e
Big Game Authorization R e cord but must k ee p a se parat e r e cord
of th e authorization number s obtained for d ee r kill e d und e r this
program.
Any big gam e tag which has b ee n d e tach e d from th e backing or
tag card issu e d with th e big gom e lic e n se prior to th e killing and
tagging of th e big game animal may b e s e iz e d b\ a wildlif e
e nforc e m e nt offic e r, if th e r e i s e vid e nc e of prior u se .
(a) Upon killing a bear, deer, wild boar, or wild turkey and
before moving the animal from the site of kill, the successful
hunter must validate the Big Game Harvest Report Card
furnished with the big game hunting license by cutting or
punching out the validation box that correctK identifies the big
game animal harvested.
(b) Before an\ harvested bear, deer, wild boar, or wild turke\
is skinned, dressed, or dismembered for consumption and within
24 hours of the kill, the animal must be transported to a Wildlife
Cooperator Agent within the immediate area of open season to
be registered. The hunter ma\ field dress the animal at the site
of kill or before registering it at a Wildlife Cooperator Agent by
bleeding and removing the digestive, respiratory, and circulatory
organs: but, the hunter may not mutilate the carcass in a manner
that obscures its species identity, age, or sex. When the kill
occurs in a remote area, which prevents the animal from being
transported as an entire carcass, the animal may be skinned and
quartered before being transported to a Wildlife Cooperator
Agent to be registered. When a hunter harvests a bjg game
animal [n a remote area and plans to remain in the remote area
for longer than a day, the 24-hour time limit to register the kill
is extended until the hunter leaves the area. Upon leaving the
remote area, the hunter shall proceed directly to a Wildlife
Cooperator Agent to register the kill.
(c) When a successful hunter presents a big game kill at a
Wildlife Cooperator Agent for registration, the Wildlife
Cooperator Agent shall issue an authorization number, which
includes the date of kill, to the successful big game hunter The
hunter shall record the authorization number given by the
Wildlife Cooperator Agent in the space provided immediately
beloys' the validation box that has been cut or punched out on the
Big Game Harvest Report Card. The record entered on the Big
Game Harvest Report Card shall thereafter constitute
authorization number received at the Wildlife Cooperator Agent.
if the animal has already been registered. It shall be unlawful for
a person to possess a Big Game Harvest Report Card on which
the species validation box has been cut or punched out, but on
which the authorization number from a Wildlife Cooperator
Agent has not been recorded, unless the animal is in the person's
possession and being transported to a Wildlife Cooperator
Agent.
(e) Persons who are bv law exempt from the big game hunting
license shall obtain a Big Game Harvest Report Card for License
Exempt Hunters from a Wildlife Service Agent at no cost. Upon
harvesting a bear, deer, wild boar, or wild turkey, the exempt
person shall validate the Big Game Harvest Record Card and
report the big game kill at a Wildlife Cooperator Agent as
provided by this Rule.
(f) Persons killing antlerless deer under the Deer Management
Assistance Program pursuant to G.S. 1 13-291. 2(e) shall follow
the tagging and reporting requirements set forth by statute and
are not obligated to take any action under this Rule.
Authority- G.S. 113-134: 113-270.3; 113-276.1.
SECTION .0200 - HUNTING
.0202 BEAR
(a) Open Seasons for bear shall be from the:
(1) Monday on or nearest October 15 to the Saturday
before Thanksgiving and the third Monday after
Thanksgiving to January 1 in and west of the
boundary formed by NC +6 113 from the Virginia
State line to Wilk e sboro and the intersection with NC
1 8 and NC J_8 from Wilk e sboro to the South Carolina
State line.
(2) Second Monday in November to the following
Saturday and the third Monday after Thanksgiving to
the following Wednesday in all of B e aufort. Bertie.
Camd e n. Crav e n. Dar e . Gat e s. H e rtford. Hyde. Jon e s.
Pamlico. Pasquotank. Tyrr e ll, and Washington and
Hertford counties; and in the following parts of
counties:
Chowan: that part north of a lino form e d by
SR 1002. SR 1222 and SR 1221.
Currituck: e xc e pt Knotts Island and th e
Out e r Banks.
Halifax: that part east of US 301.
Martin: that part east of US 1 7.
Northampton: that part east of US 301 .
(3) Second Monday in November to January 1 in all of
Bladen. Carteret. Duplin. New Hanover, Onslow and
Pender counties; and in the following parts of
950
NORTH CAROLINA REGISTER
December 15, 1998
13:12
ixMaKH\mii mmvmrf^ wmYm!\mmm \ lliii III |i|lll iB ii|i || illl l lll W
PROPOSED RULES
counties:
Cumberland: thatpart south of NC 24 and east
of the Cape Fear River.
Sampson: that part south of NC 24.
(4) Second Monday in December to January 1 in
Brunswick and Columbus counties.
(5) Second Monday jn November to the following
Saturday and the third Monday after Thanksgiving to
the fifth Saturday after Thanksgiving in aU of
Beaufort, Camden. Craven, Dare, Gates, Hyde. Jones.
Pamlico. Pasquotank, Tyrrell, and Washington
counties, and in the following parts of counties:
Chowan: that part north of a line formed by
SR 1002. SR 1222. and SR 1220.
Currituck: except Knotts Island and the
Outer Banks.
(b) No Open Season. There is no open season in any area not
included in Paragraph (a) of this Rule or in those parts of
counties included in the following posted bear sanctuaries:
Avery, Burke and Caldwell counties— Daniel Boone
bear sanctuary
Beaufort, Bertie and Washington counties-Bachelor
Bay bear sanctuary
Beaufort and Pamlico counties— Gum Swamp bear
sanctuary
Bladen County— Suggs Mill Pond bear sanctuary
Brunswick County— Green Swamp bear sanctuary
Buncombe, Haywood. Henderson and Transylvania
counties— Pisgah bear sanctuary
Carteret, Craven and Jones counties-Croatan bear
sanctuary
Clay County-Fires Creek bear sanctuary
Columbus County-Columbus County bear sanctuary
Currituck County— North River bear sanctuary
Dare County— Bombing Range bear sanctuary
Haywood County— Harmon Den bear sanctuary
Haywood County— Sherwood bear sanctuary
Hyde County-Gull Rock bear sanctuary
Hyde County— Pungo River bear sanctuary
Jackson County— Panthertown-Bonas Defeat bear
sanctuary
Jones and Onslow counties— Hofrnann bear sanctuary
Macon County-Standing Indian bear sanctuary
Macon County— Wayah bear sanctuary
Madison County— Rich Mountain bear sanctuary
McDowell and Yancey counties— Mt. Mitchell bear
sanctuary
Mitchell and Yancey counties— Flat Top bear
sanctuary
Wilkes County— Thurmond Chatham bear sanctuary
(c) Bag limits shall be:
(1) daily, one;
(2) possession, one;
(3) season, one.
(d) Kill Reports. The carcass of each bear shall be tagged and
the kill reported as provided by 15A NCAC 1 OB .0113.
AuthoritvG.S. 113-134; 113-291.2: 113-291.7: 113-305.
.0203 DEER (WHITE-TAILED)
(a) Closed Season. All counties and parts of counties not
listed under the open seasons in Paragraph (b) in this Rule shall
be closed to deer hunting.
(b) Open Seasons (All Lawful Weapons)
(1) Deer With Visible Antlers. Deer with antlers or
spikes protruding through the skin, as distinguished
from knobs or buttons covered by skin or velvet, may
be taken during the following seasons:
(A) Monday on or nearest October 15 through
January 1 in all of Beaufort, Bertie, Bladen,
Brunswick, Camden, Carteret, Chowan,
Columbus*, Craven, Currituck, Dare, Duplin,
Edgecombe. Franklin, Gates, Greene, Halifax,
Hertford, Hoke, Hyde, Johnston, Jones, Lenoir,
Martin, Nash, New Hanover, Northampton,
Onslow, Pamlico, Pasquotank, Pender,
Perquimans, Pitt, Richmond**, Robeson,
Sampson, Scotland**, Tyrrell, Vance, Wake,
Warren, Washington, Wayne, and Wilson
counties, and the following parts of counties:
Cumberland: All of the county except that part
east of US 401, north of NC 24, and west of I-
95;
Harnett: That part west of NC 87;
Moore**: All of the county except that part
north of NC 211 and west of US 1;
*Unlawful to hunt or kill deer in Lake
Waccamaw or within 50 yards of its shoreline.
**See 15A NCAC lOD .0003(f)(52)(B)
.0103(f)(53)(B) for seasons on Sandhills Game
Land.
(B) Monday of Thanksgiving week through the
third Saturday after Thanksgiving Day in all of
Alexander, Alleghany, Ashe, Catawba, Davie,
Forsyth. Gaston, Iredell, Lincoln, Stokes,
Surry, Watauga, Wilkes, and Yadkin counties.
(C) Monday of Thanksgiving week through the
third Saturday after Thanksgiving Day in all of
Avery, Buncombe, Burke, Caldwell, Cherokee,
Clay, Cleveland, Graham, Haywood,
Henderson, Jackson, Macon, Madison,
McDowell, Mitchell, Polk, Ruth e rford, Swain,
Transylvania, and Yancey counties.
(D) Monday before Thanksgiving week through
January 1 in all of Alamance, Anson, Cabarrus,
Caswell, Chatham, Cleveland. Davidson,
Durham, Gaston. Granville. Guilford, Lee,
Lincoln, Mecklenburg, Montgomery, Orange,
Person, Randolph, Rockingham, Rowan,
Rutherford, Stanly, and Union counties, and in
the following parts of counties:
Cumberland: That part east of US 401, north
ofNC 24 and west of 1-95;
Harnett: That part east of NC 87;
Moore: That part north of NC 2 1 1 and west of
US 1;
(E) Monday on or nearest September 1 through
13:12
NORTH CAROLINA REGISTER
December 15, 1998
951
PROPOSED RULES
January 1 in those parts of Camden, Gates and Pasquotank
counties known as the Dismal Swamp National Wildlife Refijge,
in those parts of Hyde, Tyrrell and Washington counties known
as the Pocosin Lakes National Wildlife Refuge, in those parts of
Anson and Richmond counties known as the Pee Dee National
Wildlife Refijge, and in that part of Currituck County known as
the Mackay Island National Wildlife Refuge.
(2) Deer of Either Sex. Except on Game Lands, deer of
either sex may be taken during the open seasons and
in the counties and portions of counties listed in this
Subparagraph (S ee lOD .0003 Section (See lOD
.0103 for either sex seasons on Game Lands):
(A) The open either-sex deer hunting dates
established by the U.S. Fish and Wildlife
Service during the period from the Monda\ on
or nearest September 10 through January 1 in
those parts of Camden, Gates and Pasquotank
counties known as the Dismal Swamp National
Wildlife Refuge, in those parts of H\de, T\Trell
and Washington counties known as the Pocosin
Lakes National Wildif e Wildlife Refuge, in
those parts of Anson and Richmond counties
known as the Pee Dee National Wildlife
Refuge, and in that part of Currituck Count\
known as the Mackay Island National Wildlife
Refuge.
(B) The open either-sex deer hunting dates
established by the appropriate militar\
commands during the period fi^om Monday on
or nearest October 1 5 through January 1 in that
part of Brunswick Comity known as the Sunny
Point Military Ocean Terminal, in that part of
Craven County known and marked as Cherry
Point Marine Base, in that part of Onslow
County known and marked as the Camp
Lejeune Marine Base, on Fort Bragg Military
Reservation, and on Camp Mackall Militar)'
Reservation.
(C) First Saturda\ in October for youth either sex
deer hunting by permit onK on a portion of
Belews Creek Steam Station in Stokes Countv
designated b\ agents of the Commission.
(D) The last open da>' of the Deer with Visible
Antlers season described in Subparagraph
(b)(1) of this Rule in all of Buncombe,
Hayuood, Henderson. Madison, Mitchell,
Polk, Transylvania, and Yancey counties and
the following parts of counties:
Avery: That part south of the Blue Ridge
Parkwa\.
Robeson: That part west of 1-95.
Scotland: That part south of US 74.
(E) The last six open da>s of the Deer With Visible
Antlers season described in Subparagraph
(b)(1) of this Rule in all of Burke, Caldwell,
Catawba. Gaston, Lincoln, McDowell, and
Watauga and the following parts of counties:
Camden: That part south of US 158.
Dare: Except the Outer Banks north of
Whalebone.
(F) The first six open days and the last six open
days of the Deer with Visible Antlers season
described in Subparagraph (b)(1) of this Rule
in all of Carteret, Cleveland, Harnett, Hoke,
Pamlico, Richmond, Rutherford, counties and
in the following parts of counties:
Columbus: That part west of US 74. SR 1005,
andSR 1125.
Cumberland: That part west of 1-95.
Moore: All of the county except that part north
ofNC211 and west of US 1.
Robeson: That part east of 1-95.
Scotland: That part north of US 74.
(G) The first six open days, open days the week of
Thanksgiving, and and the last six open days of
the Deer with Visible Antlers season described
in Subparagraph (b)(1) of this Rule in all of
Greene, Pasquotank, Tyrrell, Wayne and
Wilson counties and in the following parts of
counties:
Camden: That part north of US 158.
Chowan: That part north of US 17 and west of
NC32.
Currituck: All of the county except the Outer
Banks.
Nash: That part south of US-64t NC 97.
Johnston: That part north of US 70 or west of
1-95.
(H) All the open days of the Deer With Visible
Antlers season described in Subparagraph
(b)(1) of this Rule in all of Alamance,
Alexander, Alleghany, Anson, Ashe, Beaufort,
Bertie, Bladen, Brunswick, Cabarrus, Caswell,
Chatham. Craven. Davidson, Davie, Duplin,
Durham. Edgecombe, Fors>th, Franklin, Gates,
Granville, Guilford, Halifax, Hertford, Hyde,
Iredell. Jones, Lee, Lenoir, Martin,
Mecklenburg, Montgomery, New Hanover,
Northampton, Onslow, Orange, Pender,
Perquimans, Person, Pitt, Randolph,
Rockingham, Rowan. Sampson, Stanly, Stokes,
Surry, Union. Vance, Wake, Warren,
Washington. Wilkes and Yadkin counties, and
in the following parts of counties:
Buncombe: that part east of NC 191, south of
the French Broad and Swannanoa Rivers, west
of US 25, and north of SR 3503, NC 146 and
SR3501.
Chowan: That part south of US 17 or east of
NC32.
Columbus: That part east of a line formed by
US74, SR 1005, and SR 1125.
Cumberland: that part east of 1-95.
Dare: That part of the Outer Banks north of
Whalebone.
Johnston: That part south of US 70 and east of
952
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
1-95.
Moore: that part north of NC 2 1 1 and west of
US 1.
Nash: That part north of ¥S-64t NC 97.
(c) Open Seasons (Bow and Arrow)
(1) Authorization. Subject to the restrictions set out in
Subparagraph (2) of this Paragraph and the bag Hmits
set out in Paragraph (e) of this Rule, deer of either sex
may be taken with bow and arrow during the
following seasons:
(A) Monday on or nearest September 10 to the
fourth Saturday thereafter in the counties and
parts of counties having the open season for
Deer With Visible Antlers specified by Part
(A) of Subparagraph (b)(1) of this Rule, except
on the Sandhills Game Land and the area
known as the Outer Banks in Currituck
County.
(B) Monday on or nearest September 10 to the
second Saturday before Thanksgiving in the
counties and parts of counties having the open
seasons for Deer With Visible Antlers
specified by Part (B) of Subparagraph (b)( 1 ) of
this Rule.
(C) Monday on or nearest September 10 to the
fourth Saturday thereafter, and Monday on or
nearest October 15 to the Saturda> before
Thanksgiving in the counties and parts of
counties having the open seasons for Deer
With Visible Antlers specified by Part (C) of
Subparagraph (b)(1) of this Rule.
(D) Monday on or nearest September 10 to the
third Saturday before Thanksgiving in the
counties and parts of counties having the open
season for Deer With Visible Antlers specified
by Part (D) of Subparagraph (b)( 1 ) of this
Rule, and on Sandhills Game Land.
(2) Restrictions
(A) Dogs may not be used for hunting deer during
the bow and arrow season.
(B) It is unlawful to carry any type of firearm while
hunting with a bow during the bow and arrow
deer hunting season.
(C) Only bows and arrows of the types authorized
in 15 A NCAC 1 OB .01 16 for taking deer may
be used during the bow and arrow deer hunting
season.
(d) Open Seasons (Muzzle-Loading Rifles and Shotguns)
(1) Authorization. Subject to the restrictions set out in
Subparagraph (2) of this Paragraph, deer may be taken
only with muzzle-loading firearms (except that bow
and arrow may be used on designated and posted
game land Archery Zones) during the following
seasons:
(A) Monday on or nearest October 8 to the
following Saturday in the counties and parts of
counties having the open seasons for Deer
With Visible Antlers specified by Parts (A) and
(C) of Subparagraph (b)(1) of this Rule, except
on Sandhills Game Land and the area known as
the Outer Banks in Currituck County.
(B) Monday to Saturday of the week preceding
Thanksgiving week in the counties and parts of
counties having the open seasons for Deer
With Visible Antlers specified by Part (B) of
Subparagraph (b)( 1 ) of this Rule.
(C) Monday to Saturday of the second week before
Thanksgiving week in the counties and parts of
counties having the open season for Deer With
Visible Antlers specified by Part (D) of
Subparagraph (b)(1) of this Rule, and on
Sandhills Game Land.
(2) Restrictions
(A) Deer of either sex may be taken during muzzle-
loading firearms season in and east of the
following counties: Rutherford, McDowell,
Burke, Caldwell, Wilkes, and Ashe. Deer of
either sex may be taken on the last day of
muzzle-loading firearms season in all other
counties.
(B) Dogs shall not be used for hunting deer during
the muzzle-loading firearms seasons.
(C) Pistols shall not be carried while hunting deer
during the muzzle-loading firearms seasons.
(e) The daily bag limit shall be two and the possession limit
six, two of which shall be antlerless. The season limit shall be
six, two of which shall be antlerless. Antlerless deer include
males with knobs or buttons covered by skin or velvet as
distinguished from spikes protruding through the skin. The
antlerless bag limits described above do not apply to antlerless
deer harvested in areas covered in the Deer Management
Assistance Program as described in G.S. 113-291. 2(e).
Individual daily antlerless bag limits on these areas shall be
determined by the number of special tags, issued by the Division
of Wildlife Management as authorized by the Executive
Director, that shall be in the possession of the hunter. Season
antlerless bag limits shall be set by the number of tags available.
All antlerless deer harvested on these areas, regardless of the
date of harvest, shall be tagged with these special tags but do not
hav e to b e tagg e d with Big Gam e Tags the hunter does not have
to validate the Big Game Harvest Report Card provided with the
hunting license.
(0 Kill Reports. The kill shall be validated at the site of kill
Th e carcass of e ach deer shall b e tagg e d and the kill reported as
provided by 15A NCAC 10B.0113.
Authority G.S. 113-134; 113-270.3; 113-276.1; 113-291.1;
113-291.2.
.0205 RACCOON AND OPOSSUM
(a) Open S e asons Season: fl-)Sunrise Monday on or nearest
October 1 5 to January 3 1 in and west of Stokes, Forsyth, Davi e ,
Ir e d e ll. M e ckl e nburg and Union Counti e s: the jast day of
February, except as follows:
-(A4(l) There is no open season for hunting raccoon or
opossum in that part of Madison County lying north
13:12
NORTH CAROLINA REGISTER
December 15, 1998
953
PROPOSED RULES
of the French Broad River, south of US 25-70 and west of SR
1319.
-fB)£2j Raccoon and opossum may be hunted only from
sunset Friday until sunrise Saturday and from sunset
Saturday until 12:00 midnight Saturday in that part of
Cherokee County north of US 64 and NC 294. east of
Persimmon Creek and Hivvassee Lake, south of
Hiwassee Lake, and west of Nottely River
-f€^3) Training raccoon and opossum dogs is prohibited
from March 1 to the Monday on or nearest October 1 5
in the following parts of counties:
mA) Cherokee: That part north of US 64 and NC
294, east of Persimmon Creek and Hiwassee
Lake, south of Hiwassee Lake, and west of
Nottely Riven
fi^KB) Madison: That part north of the French Broad
River, south of US 25-70. and west of SR
1319.
(©X4j Training raccoon and opossum dogs at night is
prohibited from April 1 through August 15 in
Caldwell and Rutherford Counties.
(3) Sunri se Monday on or n e ar e st Octob e r 22 to th e la s t
day of F e bruary, in and e ast of Rockingham. Guilford.
Davidson. Rowan. Cabarrus. Stanly and Anson
Counti es .
(b) Bag Limits
( 1 ) Raccoon: Daily, one per individual to a maximum of
two per hunting party ; possession, two; season. 20,
except that in and east of Rockingham. Guilford,
Randolph. Montgomery and Anson counties the limits
are: daily, three; possession, six; season. 30. The field
possession limit while hunting is the same as the
applicable daily limit.
(2) Opossum: No restriction.
Note: See 1 5 A NC AC 1 OB .0 1 1 1 prohibiting axes, saws and
shooting in certain western counties.
Authority- G.S. 113-134: 113-291.2.
.0209 WILD TURKEY (BEARDED TURKEYS ONLY)
(a) Open Season for wild turkey shall be from the: Second
Saturday in April to Saturda> of the fourth week thereafter on
bearded turkeys in the following counties: Alamance. Alexander,
Alleghany. Anson. Ashe. Aver>. **Bladen. Buncombe. Burke,
Caldwell. Caswell. Catawba, **Chatham, Cherokee. Chowan.
Clay, Cleveland. Craven, Davie. Duplin. **Durham,
Edgecombe. Fors\th. Gaston. Gates. Graham. **Granville.
Halifax. Harnett, Haywood, Henderson, Hertford, Jackson,
Jones, Lee, Lenoir, Lincoln, Macon, Madison, McDowell,
Mitchell. MontgomerN. Northampton. Onslow. **Orange.
Person. Polk. **Richmond. Rockingham. Rutherford.
**Scotland. Stokes. Surr>. Swain. Transylvania. Vance.
Washington. Warren. Watauga. Wilkes. Yadkin. Yance\ and in
the following portions of counties:
An s on: That part e ast of US 52 and north of US 7 4
and that part e ast of NC 115 and south of US 7 4 .
Beaufort: That part south of the Pamlico River and
east of US 17.
**Bertie: All of the county except that part
bounded on the west by NC 1 1. on the south by NC
308. on the east by NC 45. and on the north by NC 42
and the Hertford Count>' line, south of NC 12. west of
NC 1 5. north of NC 30 8 . and o ast of US 13 .
Brunswick: That part west of NC 211 and that part
east of NC 87.
Cabarrus: That part south of 1-85, east of US 601
Business, and north of NC 49.
Camden: That part west of US 17.
Carteret: That part west of US 70 and north of NC 24.
Chowan: That part south of US 17.
Columbus: That part north of NC 87 and that part
east of NC 905 and south of NC 130.
Crav e n: All of th e county e xc e pt that part w e st of US
17 and north of NC 11 8 ."
Cumberland: That part west of NC 53 or 1-95.
Currituck: That part north of US 158 and west of the
Intracoastal Waterwa\.
Davidson: That part south of 1-85.
Franklin: All of the county except that part north of
the Tar River and west of US 40 1 .
Guilford: That part north of 1-40.
Hoke: That part south and west of NC 211 and that
part known as Fort Bragg.
Hyde: Starting at the Tyrrell County line, that
part west of a line formed by NC 94, US 264 West,
SRI 124 to Judges Quarter then Quarter Canal to
Juniper Ba>.
Iredell: That part north of US 70.
Johnston: That part east of 1-95.
**Martin: All of the county except that part west of
US 17 and south of US 64.
**Moore: That part south of NC 344 2iL that part
north of NC 24^27. and that part known as Fort Bragg.
Nash: All of the county except that part east of NC
581 and south of US 64'.
New Hanover: Starting at the Brunsw ick County line,
that part north and west of a line formed by NC-133
and SR 1002.
Pamlico: That part west of NC 306.
**Pender: All of the county except that part west of
1-40, north of NC 53, and east of US 421.
Perquimans: That part w e st of th e P e rquiman s Riv e r
and south of SR 1 1 10 and US 1 7 Busin es s. AHofthe
county except that part south of US 17 and east of the
Perquimans River.
Randolph: That part west of US 220 and north of US
64 and that part west of US 220 and south of NC 49.
Robeson: That part east of 1-95 and north of US
74.
Rowan: That part southeast of 1-85.
Sampson: All of the county except that part east of
NC 242. south of NC 41 1. and west of US 701.
Stanly: That part east of a line formed b\' US 52
from the Cabarrus Counry line to NC 138 in
Albemarle. NC 138 from Albemarle to NC 742 in
Oakboro. and NC 742 from Oakboro to the Union
954
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
County line.
Union: That part south of US 74. NC 7 4 and w e st of
NC 207.
**Wake: That part north of 1-40.
Wayne: That part south of US-70 and east of US- 1 1 7
and that part south of SR 1007 and north of SR 1008.
**The Sandhills Game Land in Richmond, Scotland,
and Moore Counties, the Bladen Lakes State Forest
Game Lands in Bladen County, the Northeast Cape
Fear Wetlands Game Lands in Pender County, the
Jordan Game Land in Chatham, Durham, Orange, and
Wake Counties, the Butner-Falls of the Neuse Game
Land in Durham, Granville, and Wake Counties, and
the Roanoke River Wetlands in Bertie, Halifax, and
Martin Counties are closed to turkey hunting except
by holders of special permits authorizing turkey
hunting as provided in G.S. 1 I3-264(d).
(b) Bag Limits shall be:
( 1 ) daily, one;
(2) possession, two;
(3) season, two.
(c) Dogs Prohibited. It is unlawful to use dogs for hunting
turkeys.
(d) Kill Reports. The carcass of each wild turkey shall be
tagged and the kill reported as provided by 15A NCAC lOB
.0113.
Authority G.S. 113-134; 113-270.3: 113-276.1; 113-291.2.
.0212 FOXES (GRAY AND RED)
(a) Seasons.
( 1 ) There shall be no closed season on taking foxes with
dogs;
(2) Foxes may be taken with weapons or traps the first to
fourth Saturday in January in the following counties:
Brunswick
Henderson
Stokes
Caswell
Johnston
Tyrrell
Clay
Macon
Graham
Sampson
Highway 77 as set by the Legislature and in
Subparagraph (a)(3) of this Rule, the following bag
limit applies: Daily, two; season, 10.
Note: Where local laws governing the taking of foxes conflict
with these Regulations, the local laws shall prevail.
Authority G.S. 113-134; 113-291.2; 113-291.4.
SECTION .0300 - TRAPPING
.0302 OPEN SEASONS
(a) General. Subject to the restrictions set out in Paragraph
(b) of this Rule, the following seasons for taking furbearing
animals as defined in G.S. 113-129(7a), coyotes, and
groundhogs shall apply as indicated, all dates being inclusive:
(1) November 7-February 12 in and west of Surry,
Wilkes, Alexander, Catawba, Burke and Cleveland
Counties.
(2) December 1 5-February 28 in and east of Hertford,
Bertie, Martin, Pitt, Greene, Lenoir, Duplin, Pender
and New Hanover Counties, except that in the
marshes adjoining Currituck Sound in Currituck
County the season is December 15-March 12 and
nutria may not be shot at any time (day or night)
during the open season for migratory waterfowl.
(3) December 1 -February 20 in all other counties.
(4) November 1 - March 3 1 statewide for beaver only.
(b) Restrictions
(1) It is unlawful to trap or take otter in and west of
Stokes, Forsyth, Davie, Iredell, and Mecklenburg
Counties.
(2) It is unlawful to set steel traps for muskrat or mink in
and west of Surry, Wilkes, Alexander, Catawba,
Burke and Cleveland Counties except in or adjacent
to the waters of lakes, streams or ponds.
(3) It is unlawful to trap raccoon in Yadkin County and in
and west of Surry, Wilkes, Alexander, Catawba,
Lincoln and Gaston Counties.
Note: See 15A NCAC lOD .0002(f) .0102(f) for other
trapping restrictions on game lands.
(3) Foxes may be taken the Saturday next preceding
Thanksgiving through January 1 by bow and arrow in
all areas of the State east of Interstate Highway 77 and
in Mitchell County,
(b) Bag Limit.
( 1 ) Except in areas of open season for taking foxes with
weapons or traps, foxes may not be intentionally
killed by any method;
(2) In areas of open season set by the North Carolina
Wildlife Resources Commission in Subparagraph
(a)(2) of this Rule for taking foxes with weapons or
traps the season harvest in each county is limited to
the number of tags allotted for that county. Each fox
must be immediately tagged at the scene of taking
with tag previously obtained as provided by 15A
NCAC 1 OB .0403(d);
(3) In areas of open season in all areas east of Interstate
Authority G.S. 113-134; 113-291.1; 113-291.2.
SUBCHAPTER IOC - INLAND FISHING
REGULATIONS
SECTION .0100 - JURISDICTION OF AGENCIES:
CLASSIFICATION OF WATERS
.0107 SPECIAL REGULATIONS: JOINT WATERS
In order to effectively manage all fisheries resources in joint
waters and in order to confer enforcement powers on both
fisheries enforcement ofTicers and wildlife enforcement officers
with respect to certain rules; the Marine Fisheries Commission
and the Wildlife Resources Commission deem it necessary to
adopt special rules for joint waters. Such rules supersede any
inconsistent rules of the Marine Fisheries Commission or the
Wildlife Resources Commission that would otherwise be
13:12
NORTH CAROLINA REGISTER
Bffl
December 15, 1998
955
PROPOSED RULES
applicable in joint waters under the provisions of 15A NCAC
IOC .0106:
( 1 ) Striped Bass
(a) It shall be unlawful to possess an\ striped bass
or striped bass h>brid taken bN' any means
\shich is less than 18 inches long (total length).
(b) It shall be unlawfijj to possess more than three
striped bass or their hybrids taken by hook and
line in an> one da\ from joint waters.
(c) It shall be unlawful to engage in net fishing for
striped bass or their hNbrids in joint waters
except as authorized b\ duK adopted
regulations of the Marine Fisheries
Commission.
(d) It is unlaw ful to possess striped bass or striped
bass h\brids in the joint waters of Albemarle.
Currituck. Roanoke and Croatan Sounds and
their tributaries, excluding the Roanoke Ri\er.
except during seasons as authorized b\ duh'
adopted rules of the Marine Fisheries
Commission.
(e) In the joint waters of the Roanoke River and its
tributaries, including Cashie. Middle and
Eastmost Ri\ers. striped bass and h\brid
striped bass fishing season, size limits and
creel limits shall be the same as those
established b> authorized h\ duK adopted rules
of the Wildlife Resources Commission for
adjacent inland fishing waters.
(2) Lake Mattamuskeet
(a) It shall be unlawful to set or attempt to set an\
gill net in Lake Mattamuskeet canals
designated as joint waters.
(b) It shall be unlaw ful to use or attempt to use an>
trawl net or seines in Lake Mattamuskeet
canals designated as joint waters.
(3) Cape Fear River. It shall be unlawful to use or
attempt to use an\ net or net stakes \\ ithin 800 feet of
the dam at Lock No. 1 on Cape Fear Ri\ er
(4) American and hickor\ shad, ft shall be unlawful to
possess more than 10 American and hickor\ shad in
aggregate taken b\ hook and line in an\ one day from
joint waters.
Authority G.S. U 3-1 32: 113-134: 113-138: 113-292.
.0205 PUBLIC MOUNTAIN TROUT VNATERS
(a) Designation of Public Mountain Trout Waters. The
waters listed herein or in 15A NCAC lOD ^0004 .0104 are
designated as Public Mountain Trout Waters and further
classified as Wild Trout Waters or Hatcher. Supported Waters.
For specific classifications, see Subparagraphs ( 1 ) through (6)
of this Paragraph. TTiese waters are posted and lists thereof are
filed with the clerks of superior court of the counties in which
they are located:
(1) Hatcher. Supported Trout Waters. The listed waters
in the counties in Subparagraphs (1)(A)-(Y) are
classified as Hatcher. Supported Public Mountain
Trout Waters. WTiere specific watercourses or
impoundments are listed, indentation indicates that the
watercourse or impoundment listed is tributarv' to the
next preceding watercourse or impoundment listed
and not so indented. This classification applies to the
entire watercourse or impoundment listed except as
otherwise indicated in parentheses following the
listing. Other clarifying information ma\ also be
included parentheticalK. The tributaries of listed
\\ atercourses or impoundments are not included in the
classification unless specifically set out therein.
Other\sise. Wild Trout regulations apph' to the
tributaries.
(A) Alleghany County:
New Ri\er (not trout water)
Little River (Whitehead to McCann
Dam)
Crab Creek
Brush Creek (except where
posted against trespass)
Big Pine Creek
Laurel Branch
Big Glade Creek
Bledsoe Creek
Pine Swamp Creek
South Fork New River (not trout
v\ater)
Prather Creek
Cranbern Creek
Pine\ Fork
Meadow Fork
Yadkin River (not trout water)
Roaring River (not trout water)
East Prong Roaring River (that portion
on Stone Mountain State Park) Delaved
Harvest Waters regulations appK. See
Subparagraph (5) of Paragraph (a) of
this Rule.
(B) AsheCount>:
New River (not trout waters)
North Fork New Ri\er (Watauga Co. line to
Sharp Dam)
Helton Creek (Virginia State line to
New River) [Dela\ed Harvest rules
apply. See Subparagraph (5) of
Paragraph (a) of this Rule.]
Big Horse Creek (SR 1361 bridge to
Tuckerdale)
Buffalo Creek (headwaters to junction
ofNC 194-88 and SR 1131)
Big Laurel Creek
Three Top Creek (portion not on game
lands)
Hoskins Fork (Watauga Countv line to
North Fork New River)
South Fork New River (not trout waters)
Cranbern. Creek (Alleghan\ Countv line
to South Fork New Riv er)
956
NORTH CAROLINA REGISTER
December 15. 1998
13:12
PROPOSED RULES
Nathans Creek
Peak Creek (headwaters to Trout Lake,
except Blue Ridge Parkway waters)
Trout Lake (Delayed harvest regulations
apply. See Subparagraph (5) of
Paragraph (a) of this Rule.)
Roan Creek
North Beaver Creek
Pine Swamp Creek (all forks)
Old Fields Creek
Mill Creek (except where posted against
trespass)
(C) Avery County:
Nolichucky River (not trout waters)
North Toe River (headwaters to
Mitchell County line, except where
posted against trespass)
Squirrel Creek
Elk River (SR 1306 crossing to
Tennessee State line, including portions
of tributaries on game lands)
Catawba River (not trout water)
Johns River (not trout water)
Wilson Creek [not Hatchery Supported
trout water, see Subparagraph (2) of
Paragraph (a) of this Rule]
Lost Cove Creek [not Hatchery
Supported trout water, see
Subparagraph (4) of Paragraph
(a) of this Rule]
Buck Timber Creek [not Hatchery
Supported trout water, see Subparagraph
(2) of Paragraph (a) of this Rule]
Cary Flat Branch [not Hatchery
Supported trout water, see Subparagraph
(2) of Paragraph (a) of this Rule]
Boyde Coffey Lake
Archie Coffey Lake
Linville River [Land Harbor line (below
dam) to Blue Ridge Parkway boundary
line, except where posted against
trespass]
Milltimber Creek
(D) Buncombe County:
French Broad River (not trout water)
Big Ivy Creek (Ivy River) (Dillingham
Creek to US 19-23 bridge)
Dillingham Creek (Comer Rock
Creek to Big Ivy Creek)
Stony Creek
Mineral Creek (including
portions of tributaries on game
lands)
Comer Rock Creek (including
tributaries, except Walker
Branch)
Reems Creek (Sugar Camp Fork to US 19-23
bridge, except where posted against trespass)
Swannanoa River (SR 2702 bridge near
Ridgecrest to Sayles Bleachery in
Asheville, except where posted against
trespass)
Bent Creek (headwaters to N.C.
Arboretum boundary line, including
portions of tributaries on game lands)
Lake Powhatan
Cane Creek (headwaters to SR 3138
bridge)
(E) Burke County:
Catawba River (not trout water)
South Fork Catawba River (not trout
water)
Henry Fork (lower South
Mountains State Park line
downstream to SR 1919 at Ivy
Creek)
Jacob Fork (Shinny Creek to
lower South Mountain State
Park boundary) Delayed
Harvest Regulations apply.
See Subparagraph (a)(5) of
this Rule.
Johns River (not trout water)
Parks Creek (portion not on
game lands not trout water)
Carroll Creek (game lands
portion above SR 1405 including
tributaries)
Linville River (game lands portion
below the Blue Ridge Parkway
including portions of tributaries on
game lands and from first bridge on SR
1223 below Lake James powerhouse to
Muddy Creek)
(F) Caldwell County:
Catawba River (not trout water)
Johns River (not trout water)
Wilson Creek (Phillips Branch to
Browns Mountain Beach dam,
except where posted against
trespass)
Estes Mill Creek (not trout water)
Thorps Creek (falls to NC 90
bridge)
Mulberry Creek (portion not on game
lands not trout water)
Boone Fork (not Hatchery
Supported trout water. See
Subparagraph (2) of Paragraph
(a) of this Rule)
Boone Fork Pond
(G) Cherokee County:
Hiwassee River (not trout water)
Shuler Creek (headwaters to Tennessee
line, except where posted against
trespass including portions of tributaries
13:12
NORTH CAROLINA REGISTER
UBBfl
December 15, 1998
957
PROPOSED RULES
on game lands)
North Shoal Creek (Crane Creek)
(headwaters to SR 1325, including
portions of tributaries on game lands)
Persimmon Creek
Davis Creek (including portions of
tributaries on game lands)
Bald Creek (including portions
of tributaries on game lands)
Beaver Dam Creek (headwaters to SR
1326 bridge, including portions of
tributaries on game lands)
Valle\ River
Hyatt Creek (including portions
of tributaries on game lands)
Webb Creek (including portions
of tributaries on game lands)
Junaluska Creek (Ashtum Creek
to Valle> River, including
portions of tributaries on game
lands)
(H) Clay County:
Hiwassee River (not trout water)
Fires Creek (first bridge above the lower
game land line on US Forest Service
road 442 to SR 1300)
Tusquitee Creek (headwaters to lower
SR 1300 bridge, including portions of
Bluff Branch on game lands)
Tuni Creek (including portions
of tributaries on game lands)
Chatuge Lake (not trout water)
Shooting Creek (SR 1349 bridge to US
64 bridge at SR 1338)
Hothouse Branch (including
portions of tributaries on
gamelands)
Vineyard Creek (including
portions of tributaries on game
lands)
(I) Graham County :
Little Tennessee River (not trout water)
Calderwood Reservoir (Cheoah Dam to
Tennessee State line)
Cheoah River (not trout water)
Yellow Creek
Santeelah Reservoir (not trout water)
West Buffalo Creek
Huffman Creek (Little
Buffalo Creek)
Santeelah Creek (Johns Branch
to mouth including portions of
tributaries within this section
located on game lands, excluding
Johns Branch)
Big Snowbird Creek (old railroad
junction to mouth, including portions of
tributaries on game lands)
Mountain Creek (game lands boundary
toSR 1138 bridge)
Long Creek (portion not on game
lands)
Tulula Creek (headwaters to
lower bridge on SR 1275)
Franks Creek
Cheoah Reservoir
Fontana Reservoir (not trout water)
Stecoah Creek
Sawyer Creek
Panther Creek (including
portions of tributaries on game
lands)
(J) Haywood County:
Pigeon River (not trout water)
Hurricane Creek (including portions of
tributaries on game lands)
Cold Springs Creek (including portions
of tributaries on game lands)
Jonathans Creek - lower (concrete
bridge in Dellwood to Pigeon River)
Jonathans Creek - upper [SR 1302
bridge (west) to SR 1307 bridge]
Hemphill Creek
West Fork Pigeon River (triple
arch bridge on highway NC 215
to Champion International
property line, including portions
of tributaries within this section
located on game lands, except
Middle Prong)
Richland Creek (Russ Avenue bridge to
US 19A-23 bridge) Delayed Harvest
Regulations apply. See Subparagraph
(a)(5) of this Rule.
(K) Henderson County:
(Rocky) Broad River (one-half mile north of
Bat Cave to Rutherford County line)
Green River - upper (mouth of Bobs Creek to
mouth of Rock Creek)
Green River - lower (Lake Summit Dam to
Polk Count\ lin e ) 1-26 bridge)
Camp Creek (SR 1919 to Polk County
line)
(Big) Hungry River
Little Hungry River
French Broad River (not trout water)
Mills River (not trout water)
North Fork Mills River (game
lands portion below the
Hendersonville watershed dam).
Dela\ed Harvest Regulations
appK. See Subparagraph (a)(5)
of this Rule.
(L) Jackson County:
Tuckasegee River (confluence with West Fork
Tuckasegee River to SR 1392 bridge at
958
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
Wilmot) Delayed Harvest Regulations apply to
that portion between NC 107 bridge at Love
Field and NC 116 bridg e at W e bst e r, the
Dillsboro dam. See Subparagraph (a)(5) of this
Rule.
Scott Creek (entire stream, except where
posted against trespass)
Dark Ridge Creek (Jones Creek to
Scotts Creek)
BuflF Creek (SR 1457 bridge below Bill
Johnson's place to Scott Creek)
Savannah Creek (Headwaters to Bradley's
Packing House on NC 1 1 6)
Greens Creek (Greens Creek Baptist Church on
SR 1730 to Savannah Creek)
Cullowhee Creek (Tilley Creek to Tuckasegee
River)
Bear Creek Lake
Wolf Creek [not Hatchery Supported trout
water, see Subparagraph (2) of Paragraph (a)
of this Rule]
Wolf Creek Lake
Balsam Lake
Tanasee Creek [not Hatchery Supported trout
water, see Subparagraph (2) of Paragraph (a)
of this Rule]
Tanasee Creek Lake
West Fork Tuckasegee River (Shoal Creek to
existing water level of Little Glenville Lake)
Shoal Creek (Glenville Reservoir
pipeline to mouth)
(M) Macon County:
Little Tennessee River (not trout water)
Nantahala River (Nantahala Dam to
Swain County line) Delayed Harvest
Regulations apply to the portion from
Whiteoak Creek to the Nantahala Power
and Light powerhouse discharge canal.
See Subparagraph (a)(5) of this Rule.
Queens Creek Lake
Bumingtown Creek (including portions
of tributaries on game lands)
Cullasaja River (Sequoah Dam to US 64
bridge near junction of SR 1672,
including portions of tributaries on
game lands, excluding those portions of
Big Buck Creek and Turtle Pond Creek
on game lands. Wild trout regulations
apply. See Subparagraphs (2) and (6) of
Paragraph (a) of this Rule.)
EUijay Creek (except where
posted against trespass, including
portions of tributaries on game
lands)
Skitty Creek
Cliffside Lake
Cartoogechaye Creek (US 64
bridge to Little Tennessee River)
Tessentee Creek (Nichols Branch
to Little Tennessee River, except
where posted against trespassing)
Savannah River (not trout water)
Big Creek (base of falls to
Georgia State line, including
portions of tributaries within this
Section located on game lands)
(N) Madison County:
French Broad River (not trout water)
Shut-In Creek (including portions of tributaries
on game lands)
Spring Creek (junction of NC 209 and NC 63
to lower US Forest Service boundary line,
including portions of tributaries on game lands)
Meadow Fork Creek
Roaring Fork (including portions
of tributaries on game lands)
Little Creek
Max Patch Pond
Mill Ridge Pond
Big Laurel Creek (Mars Hill Watershed
boundary to Rice's Mill Dam)
Big Laurel Creek (NC 208 bridge to US 25-70
bridge) Delayed Harvest Regulations applv.
See Subparagraph (a)(5) of this Rule.
Shelton Laurel Creek (headwaters to NC
208 bridge)
Shelton Laurel Creek (NC 208 bridge at
Belva to the confluence with Big Laurel
Creek) Delaved Harvest Regulations
applv. See Subparagraph (a)(5) of this
Rule
Big Creek (headwaters to lower game
land boundary, including tributaries)
Mill Creek
Big Pine Creek
Puncheon Fork (Hampton Creek to Big
Laurel Creek)
(O) McDowell County:
Catawba River (portion not on game lands, not
trout water)
Buck Creek (portion not on game lands,
not trout water)
Little Buck Creek (game land
portion including portions of
tributaries on game lands)
Curtis Creek (Newberry Creek to US 70
bridge)
North Fork Catawba River (headwaters
toSR 1569 bridge)
Armstrong Creek (Cato Holler
line downstream to upper
Greenlee line)
Mill Creek (upper railroad bridge to
U.S. 70 Bridge, except where posted
against trespass)
(P) Mitchell County:
13:12
NORTH CAROLINA REGISTER
December 15, 1998
959
PROPOSED RULES
Nolichucky River (not trout water)
Big Roct; Creelv (headwaters to NC 226
bridge at SR 1307 intersection)
Little Rock Creek (Green Creek
Bridge to Big Rock Creek,
except where posted against
trespass)
Cane Creek (SR 1219 to Nolichuclq.'
Rivep) NC 226 bridge)
Cane Creek (NC 226 bridge to NC 80
bridge) Dela\ed Harvest Regulations
apply. See Subparagraph (a)(5) of this
Rule.
Grassy Creek (East Fork Grassy Creek
to mouth)
East Fork Grassy Creek
North Toe River (Avery County line to
SR1121 bridge)
(Q) Polk County:
Broad River (not trout water)
North Pacolet River (Pacolet Falls to
NC 108 bridge)
Fork Creek (Fork Creek Church
on SR 1100 to North Pacolet
River)
Big Fall Creek (portion above
and below water suppK
reservoir)
Green River (H e nd e rson County lin e
(Fishtop Falls Access Area to mouth of
Brights Creek)
Little Cove Creek (including
portions of tributaries on game
lands)
Cove Creek (including portions
of tributaries on game lands)
Camp Creek [Henderson County
line (top of falls) to Green River]
Fulloms Creek (SR 1154 to
Green River, including portions
of tributaries on game lands)
(R) Rutherford Count>':
(Rock\ ) Broad River (Henderson County line
to US 6474 bridge, except where posted
against trespass)
(S) Stokes Countv':
Dan River (SR 1416 bridge downstream to a
point 200 yards below the end of SR 1 42 1 )
(T) Surry County :
Yadkin River (not trout water)
Ararat River (SR 1727 downstream to
the Business US 52 bridge) Delayed
Harvest regulations appK. See
Subparagraph (5) of Paragraph (a) of
this Rule.
Stewarts Creek (not trout water)
Pauls Creek (Virginia State
line to 0.3 mile below SR
1625 bridge - lower Caudle
property line)
Fisher River (Cooper Creek)
(Virginia State line to NC 89
bridge)
Little Fisher River (Virginia
State line to NC 89 bridge)
Mitchell River (0.6 mile upstream of the end of
SR 1333 to Kapps Mill Dam) Delayed Harvest
Regulations apply. See Subparagraph (5) of
Paragraph (a) of this Rule.
(U) Swain County:
Little Tennessee River (not trout water)
Calderwood Reservoir (Cheoah Dam to
Tennessee State line)
Cheoah Reservoir
Fontana Reservoir (not trout water)
Alarka Creek
Nantahala River (Macon County
line to existing Fontana
Reservoir water level)
Tuckasegee River (not trout water)
Deep Creek (Great Smoky
Mountains National Park
boundary line to Tuckasegee
River)
ConnelK Creek (including
portions of tributaries on game
lands)
(V) Transylvania Count>':
French Broad River (junction of west and north
forks to US 276 bridge)
Davidson River (Averv' Creek to Ecusta
intake)
East Fork French Broad River (Glady
Fork to French Broad River)
Middle Fork French Broad River
West Fork French Broad River (SR
1312 and SR 1309 intersection to
junction of west and north forks,
including portions of tributaries within
this Section located on game lands)
(W) Watauga Count)-:
New River (not trout waters)
North Fork New River (from confluence
with Maine and Mine branches to Ashe
County line)
Maine Branch (headwaters to North
Fork New River)
South Fork New River (not trout water)
Meat Camp Creek
Norris Fork Creek
Howards Creek (downstream
from lower falls)
Middle Fork New River (Lake Chetola
Dam to South Fork New River)
Yadkin River (not trout water)
Stonv Fork (headwaters to Wilkes
960
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
County line)
Elk Creek (headwaters to gravel pit on
SR 1 508, except where posted against
trespass)
Watauga River (SR — 1459 — at — Fo s co e
downstream to NC 105 bridg e ) (Confluence of
Boone Fork and Watauga River to NC 105
bridge) Delayed Harvest Regulations apply.
See Subparagraph (5) of Paragraph (a) of this
Rule.
Beech Creek
Buckeye Creek Reservoir
Coffee Lake
Laurel Creek
Cove Creek (SR 1233 bridge at Zionville to SR
1233 bridge at Amantha)
Dutch Creek (second bridge on SR 11 34 to
mouth)
Boone Fork (headwaters to SR 1 562)
(X) Wilkes County :
Yadkin River (not trout water)
Roaring River (not trout water)
East Prong Roaring River
(Bullhead Creek to Brewer's Mill
on SR 1943) (Delayed harvest
regulations apply to portion on
Stone Mountain State Park) See
Subparagraph (5) of Paragraph
(a) of this Rule.
Stone Mountain Creek
(Delayed Harvest Regulations
apply. See Subparagraph (5)
of Paragraph
(a) of this Rule.)
Middle Prong Roaring River
(headwaters to second bridge on SR
1736)
Bell Branch Pond
Boundary Line Pond
West Prong Roaring River (not trout
waters)
Pike Creek
Pike Creek Pond
Reddies River (not trout water)
Middle Fork Reddies River
(Clear Prong) (headwaters to
bridge on SR 1580)
South Fork Reddies River
(headwaters to confluence
with Middle Fork Reddies
River)
North Fork Reddies River
(Vannoy Creek) (headwaters
to Union School bridge on
SR 1559)
Darnell Creek (North Prong
Reddies River) (downstream
ford on SR 1569 to
confluence with North Fork
Reddies River)
Lewis Fork Creek (not trout water)
South Prong Lewis Fork (headwaters to
Lewis Fork Baptist Church)
Fall Creek (except portions
posted against trespass)
(Y) Yancey County:
Nolichucky River (not trout water)
Cane River [Bee Branch (SR 1110) to
Bowlens Creek]
Bald Mountain Creek (except portions
posted against trespass)
Indian Creek (not trout water)
Price Creek (junction of SR 1 1 20
and SR 1121 to Indian Creek)
North Toe River (not trout water)
South Toe River (Clear Creek to lower
boundary line of Yancey County
recreation park except where posted
against trespass)
(2) Wild Trout Waters. All waters designated as Public
Mountain Trout Waters on the game lands listed in
Subparagraph (b)(2) of 1 5 A NCAC 1 OD m%A, .0104,
are classified as Wild Trout Waters unless specifically
classified otherwise in (A)( 1 ) of this Rule. The trout
waters listed in this Subparagraph are also classified
as Wild Trout Waters.
(A) Alleghany County:
Big Sandy Creek (portion on Stone Mountain
State Park)
Ramey Creek (entire stream)
Stone Mountain Creek (that portion on Stone
Mountain State Park)
(B) Ashe County:
Big Horse Creek (Virginia State Line to SR
1361 bridge) Catch and Release/Artificial
Lures Only Regulations apply. See
Subparagraph (a)(3) of this Rule.
Unnamed tributary of Three Top Creek
(portion located on Three Top Mountain Game
Land) Catch and Release/ Artificial Lures Onlv
Regulations apply. See Subparagraph (a)(3) of
this Rule.
(C) Avery County:
Birchfield Creek (entire stream)
Cow Camp Creek (entire stream)
Cranberry Creek (entire stream)
Gragg Prong (entire stream)
Horse Creek (entire stream)
Jones Creek (entire stream)
Kentucky Creek (entire stream)
North Harper Creek (entire stream)
Plumtree Creek (entire stream)
Roaring Creek (entire stream)
Rockhouse Creek (entire stream)
South Harper Creek (entire stream)
Webb Prong (entire stream)
13:12
NORTH CAROLINA REGISTER
BO)
December 15, 1998
smaBsamm
961
PROPOSED RULES
(D)
(E)
(F)
(G)
fWWQ
«m
mM
Wilson Creek (Catch and
Release/Artificial Lures Only
Regulations appK. See Subparagraph
(a)(3) of this Rule.)
Buncombe Count> :
Carter Creek (game land portion) (Catch and
Release Artificial Lures onl\ regulations appK'.
See Subparagraph (3) of Paragraph (a) of this
Rule.)
Burke County ;
All waters located on South Mountain State
Park, except the main stream of Jacob Fork
between the mouth of Shinn\ Creek and the
lower park boundar.' where dela\ed harvest
regulations, and Henn. Fork and tributaries
where catch and release artificial lures onK
regulations apply. See Subparagraphs (3) and
(5) of Paragraph (a) of this Rule.
Nettle Branch (game land portion)
Caldwell Count> :
Buffalo Creek (Watauga Count) line to Long
Ridge Branch)
Joes Creek (Watauga Count} line to first falls
upstream of the end of SR 1574)
Rockhouse Creek (entire stream)
Graham County:
South Fork Squalh' Creek (entire stream)
SqualK Creek (entire stream)
Henderson Counts':
Green Ri\er (1-26 bridge to Henderson Polk
Counts line)
Jackson County:
Gage Creek (entire stream)
North Fork Scott Creek (entire stream)
Tanasee Creek (entire stream)
Whitewater River (downstream from Silver
Run Creek to South Carolina State line)
Wolf Creek (entire stream, except Balsam Lake
and Wolf Creek Lake)
Madison Count> :
Spillcom Creek (entire stream) [Wild
Trout Natural Bait Waters regulations apph.
See Subparagraph (6) of Paragraph (a) of this
Rule.]
Mitchell Countv':
Green Creek (headwaters to Green Creek
Bridge, except where posted against trespass)
Little Rock Creek (headwaters to Green Creek
Bridge, including all tributaries, except where
posted against trespass)
Wiles Creek (game land boundao. to mouth)
Polk countv
Green River (Henderson Counts line to Fishtop
Falls .Access Area)
Transvlvania Countv:
Whitevsater River (dovsTistream from Silver
Run Creek to South Carolina State line)
Watauaa Counts :
Boon e Fork (Blu e Ridg e Parkway boundary
line to Watauga Riv e r) [Catch and R e lease Fly
Fishing — OftJy — r e gulations — apply. See
Subparagraph (1) of Paragraph (a) of this
Dutch Crock (headwat e rs to s e cond
bridg e on SR 113 4 )
Dutch Creek (headwaters to second
bridge on SR 1134)
Howards Creek (h e adwat e rs to low e r
Howards Creek (headvsaters to lower
falls)
Watauga Riv e r (Av e rv' Counts lin e to
SR 1559)
Watauga River (Averv Countv line to
SR 1580)
(M){0} Wilkes Count}':
Big Sandv Creek (portion on Stone Moimtain
State Park)
Garden Creek (portion on Stone Moimtain
State Park)
Harris Creek and tributaries [portions on Stone
Mountain State Park) [Catch and Release
Artificial Lures OnK regulations appK. See
Subparagraph (4) of Paragraph (a) of this
Rule.]
Widow Creek (portion on Stone Mountain
State Park)
(N){P} Yancev' Count}':
Lickskillet Creek (entire stream)
Middle Creek (game land boundarv to mouth)
Rock Creek (game land boundar}' to mouth)
South Toe River (game land boundar}
downstream to Clear Creek)
(3) Catch and Release Artificial Lures OnK Trout
Waters. Those portions of designated wild trout
waters as listed in this Subparagraph, including
tributaries except as noted, are further classified as
Catch and Release Artificial Lures OnK waters. Only
artificial lures having one single hook may be used.
No fish may be harvested or be in possession while
fishing these streams:
(A) Ashe Count}':
Big Horse Creek (Virginia State line to SR
1361 bridge excluding tributaries)
Unnamed tributarv of Three Top Creek
(portion located on Three Top Mountain Game
Lands)
(B) Aver} Count} :
Wilson Creek (game land portion)
(C) Buncombe Count} :
Carter Creek (game land portion)
(D) Burke Count} :
Henr} Fork (portion on South Mountains State
Park)
(E) Jackson Count} :
Flat Creek
962
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
Tuckasegee River (upstream of Clarke
property)
(F) McDowell County:
Newberry Creek (game land portion)
(G) Wilkes County:
Harris Creek (portion on Stone Mountain State
Park)
(H) Yancey County:
Lower Creek
Upper Creek
(4) Catch and Release/ Artificial Flies Only Trout Waters.
Those portions of designated wild trout waters as
listed in this Subparagraph, including tributaries
except as noted, are fiirther classified as Catch and
Release/Fly Fishing Only waters. Only artificial flies
having one single hook may be used. No fish may be
harvested or be in possession while fishing these
streams:
(A) Avery County:
Lost Cove Creek (game land portion, excluding
Gragg Prong and Rockhouse Creek)
(B) Transylvania County:
Davidson River (headwaters to Avery Creek,
excluding Avery Creek, Looking Glass Creek
and Grogan Creek)
(G) Watauga County:
Boon e Fork (portion b e tw ee n Blue Ridge
Parkway boundary and th e Watauga Riv e r)
(D)(C) Yancey County:
South Toe River (portion from the concrete
bridge above Black Mountain Campgroup
downstream to game land boundary, excluding
Camp Creek and Big Lost Cove Creek)
(5) Delayed Harvest Trout Waters. Those portions of
designated Hatchery Supported Trout Waters as listed
in this Subparagraph, excluding tributaries except as
noted, are further classified as Delayed Harvest
Waters. Between 1 October and one-half hour after
sunset on the Friday before the first Saturday of the
following June, inclusive, it is unlawful to possess
natural bait and only artificial lures with one single
hook may be used. No fish may be harvested or be in
possession while fishing these streams during this
time. These waters are closed to fishing between one-
half hour after sunset on the Friday before the first
Saturday in June and 6:00 a.m. on the first Saturday in
June. At 6:00 a.m. on the first Saturday in June these
streams open for fishing under Hatchery Supported
Waters rules:
(A) Ashe County:
Trout Lake
Helton Creek (Virginia state line to New River)
(B) Burke County:
Jacob Fork (Shinny Creek to lower South
Mountains State Park boundary)
(C) Haywood County:
Richland Creek (Russ Avenue bridge to US
19A-23 bridge)
(D) Henderson County:
North Fork Mills River (game land portion
below the Hendersonville watershed dam)
(E) Jackson County:
Tuckasegee River (NC 107 bridge at Love
Field Downstream to N€ — 1 1 6 bridge at
W e bst e r) the Dillsboro dam)
(F) Macon County:
Nantahala River (portion from Whiteoak Creek
to the Nantahala Power and Light power house
discharge canal)
(G) Madison County:
Big Laurel Creek (HC 208 bridge to the US 25-
70 bridge)
Shelton Laurel Creek (NC 208 bridge at Belva
to the confluence with Big Laurel Creek)
(H) Mitchell County:
Cane Creek (NC 226 bridge to NC 80 bridge)
(G)£lj Surry County:
Ararat River (SR 1 727 downstream to Business
US 52 bridge)
Mitchell River (0.6 mile upstream of the end of
SR 1333 to Kapps Mill Dam)
(HXJ} Watauga County:
Watauga River (SR 1559 bridg e at Fosco e
dovTO S tr e am to NC 1 05 bridg e ) (Confluence of
Boone Fork and Watauga River to NC 105
bridge)
ffi(K) Wilkes County:
East Prong Roaring River (from Bullhead
Creek downstream to the Stone Mountain State
Park lower boundary)
Stone Mountain Creek (from falls at Allegheny
County line to confluence with East Prong
Roaring River and Bullhead Creek in Stone
Mountain State Park)
(6) Wild Trout/Natural Bait Waters. Those portions of
designated Wild Trout Waters as listed in this
Subparagraph, including tributaries except as noted,
are further classified as Wild Trout/Natural Bait
Waters. All artificial lures and natural baits, except
live fish, are allowed provided they are fished using
only one single hook. The creel limit, size limit, and
open season are the same as other Wild Trout Waters
[see 15ANCAC IOC .0305(a)].
(A) Cherokee County:
Tellico River (Fain Ford to Tennessee state line
excluding tributaries)
(B) Clay County:
Buck Creek (game land portion downstream of
US 64 bridge)
(C) Graham County:
Deep Creek
Long Creek (game land portion)
(D) Jackson County:
Chattooga River (SR 1100 bridge to South
Carolina state line)
13:12
NORTH CAROLINA REGISTER December 15, 1998
963
PROPOSED RULES
(lower) Fowler Creek (game land portion)
Scotsman Creek (game land portion)
(E) Macon County:
Chattooga River (SR 1100 bridge to South
Carolina state line)
Jarrett Creek (game land portion)
Kimsey Creek
Overflow Creek (game land portion)
Park Creek
Tellico Creek (game land portion)
Turtle Pond Creek (game land portion)
(F) Madison County:
Spillcom Creek (entire stream, excluding
tributaries)
(G) Transylvania County:
North Fork French Broad River (game land
portions downstream of SR 1326)
Thompson River (SR 1 152 to South Carolina
state line, except where posted against trespass,
including portions of tributaries within this
section located on game lands)
(b) Fishing in Trout Waters
(1) Hatchery Supported Trout Waters. It is unlawful to
take fish of any kind by any manner whatsoever from
designated public mountain trout waters during the
closed seasons for trout fishing. The seasons, size
limits, creel limits and possession limits apply in all
waters, whether designated or not. as public mountain
trout waters. Except in power reservoirs and city
water supply reservoirs so designated, it is unlawfijl to
fish in designated public mountain trout waters with
more than one line. Night fishing is not allowed in
most hatchery supported trout waters on game lands
[see 1 5 A NCAC 1 OD .000 1 (b)(1)]. .0l04(b)(l)1.
(2) Wild Trout Waters. Except as otherwise provided in
Subparagraphs (3), (4), and (6) of Paragraph (a) of
this Rule, the following rules apply to fishing in wild
trout waters.
(A) Open Season. There is a year round open
season for the licensed taking of trout.
(B) Creel Limit. The daily creel limit is four trout.
(C) Size Limit. The minimum size limit is seven
inches.
(D) Manner of Taking. Only artificial lures having
only one single hook may be used. No person
shall possess natural bait while fishing wild
trout waters except those waters listed in 1 5A
NCAC IOC .0205(a)(6).
(E) Night Fishing. Fishing on wild trout waters is
not allowed between one-half hour after sunset
and one-half hour before sunrise.
Authorities. 113-134; 113-272; 113-292.
.0206 TROTLINES AND SET-HOOKS
Trotlines and set-hooks may be set in the inland waters of
North Carolina, provided no live bait is used; except that no
trotlines or set-hooks may be set in designated public mountain
trout waters or in any of the impounded waters on the Sandhills
Game Land. Land, -and m In Lake Waccamaw, trotlines or set-
hooks may be set only fi^om October 1 through April 30. For the
purposes of this Regulation, a set-hook is defined as any hook
and line which is attached at one end only to a stationary or
floating object and which is not under immediate control and
attendance of the person using such device. Each trotline shall
have attached the name and address of the user legibly and
indelibly inscribed. Each trotline shall be conspicuously marked
at each end with a flag, float, or other prominent object so that
its location is readily discemable by boat operators and
swimmers. Trotlines must be set parallel to the nearest shore in
ponds, lakes, and reservoirs. All trotlines and throwlines must
be fished at least once daily and all fish removed at that time.
Untended trotlines, as evidenced by the absence of bait, may be
removed from the water by wildlife enforcement officers when
located in areas of multiple water use.
Recognizing the safety hazards to swimmers, boaters and
water skiers which are created by floating metal cans and glass
jugs, it is unlawfijl to use metal cans or glass jugs as floats. This
shall not be construed to prohibit the use of plastic jugs, cork,
styrofoam, or similar materials as floats.
AuthormG.S. 113-134; 113-272; 113-292.
SECTION .0300 - GAME FISH
.0305 OPEN SEASONS: CREEL AND SIZE LIMITS
(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and creel and size limits are as
indicated in the following table:
GAME FISHES
DAILY CREEL
LIMITS
MINIMUM
SIZE LIMITS
OPEN SEASON
Mountain Trout:
Wild Trout
Waters
7 in.
ALL YEAR
(exc. 2)
Hatchery Sup-
None
All year, except
964
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
ported Trout
Waters and
undesignated
waters
Muskellunge and
Tiger Mustcy
Chain Pickerel
(Jack)
Walleye
Sauger
Black Bass:
Largemouth
Smallmouth
and Spotted
White Bass
Sea Trout (Spotted
or Speckled)
Flounder
30 in.
None
8
(exes. 8 & 9)
8
5
(exc. 9)
5
(exc. 9)
25
10
None
None
None
15 in.
14 in.
(exes. 3,7 & 10)
12 in.
(exes. 3,7 & 10)
None
12 in.
13 in.
March 1 to 6:00 a.m.
on first Saturday
in April
(exc. 2)
ALL YEAR
ALL YEAR
ALL YEAR
(exc. 8)
ALL YEAR
ALL YEAR
(exc. 17)
ALL YEAR
ALL YEAR
ALL YEAR
ALL YEAR
Red drum (channel
5
18 in.
ALL YEAR
bass, red fish.
puppy drum)
Striped Bass
8 aggregate
16 in.
ALL YEAR
and their hybrids
(exes. 1 & 5)
(exes. 1,5 & 11)
(exes. 5,13, & 15)
(Morone Hybrids)
Shad: (American
10 aggregate
None
ALL YEAR
and hickory)
(exc. 18)
^e*e^4*Wexcs. 18& 19)
Kokanee Salmon
7
None
ALL YEAR
Panfishes
None
None
ALL YEAR
(exes. 4, 12.& 16)
(exc. 12)
(exc. 4)
NONGAME FISHES
None
None
ALL YEAR
(exc. 14)
(exc. 14)
(exes. 6)
(b) Exceptions
(1) In the Dan River upstream from its confluence with
Bannister River to the Brantly Steam Plant Dam, and
in John H. Kerr, Gaston, and Roanoke Rapids
Reservoirs, and Lake Norman, the creel limit on
striped bass and Morone hybrids is four in the
aggregate and the minimum size limit is 20 inches.
(2) In designated public mountain trout waters the season
for taking all species of fish is the same as the trout
(3)
(4)
fishing season. There is no closed season on taking
trout from Nantahala River and all tributaries
(excluding impoundments) upstream from Nantahala
Lake, and the impounded waters of power reservoirs
and municipally-owned water supply reservoirs open
to the public for fishing.
Bass taken from Calderwood Reservoir may be
retained without restriction as to size limit.
On Mattamuskeet Lake, special federal regulations
13:12
NORTH CAROLINA REGISTER
December 15, 1998
965
PROPOSED RULES
apply.
(5) In the inland fishing waters of Cape Fear, Neuse, Pee-
Dee, Pungo and Tar-Pamlico rivers and their
tributaries and the Roanoke River and its tributaries, (II)
including the Cashie. Middle, and Eastmost rivers,
extending upstream to the first impoundment, and
Lake Mattamuskeet, the daily creel limit for striped
bass and their hybrids is three fish and the minimum
length limit is 18 inches. In the Roanoke River and its (12)
tributaries, including the Cashie, Middle, and
Eastmost riv e rs from rivers, in the Tar-Pamlico River
and its tributaries upstream of the Grimesland bridge
and in the Neuse River and its tributaries upstream of
the NC 55 bridge in Lenoir County Apri l I to Mav -34
no feh striped bass or striped bass hybrids between
the lengths of 22 inches and 27 inches shall be
r e tain e d, retained during the period April 1 through
May 31. (13)
(6) See 15A NCAC IOC .0407 for open seasons for
taking nongame fishes by special devices.
(7) The maximum combined number of black bass of all
species that may be retained per day is five fish, no
more than two of which may be smaller than the
applicable minimum size limit. The minimum size
limit for all species of black bass is 14 inches, with no
exception in Lake Luke Marion in Moore County, in
ReedN Creek Park lakes in Mecklenburg County, in (14)
Lake Rim in Cumberland County, in Currituck Sound
and tributaries north of Wright Memorial Bridge, in
North River and tributaries in Currituck and Camden ( 1 5)
Counties north of a line between Camden Point and
the end of SR 1 124, in High Rock Lake downstream
of 1-85. in Badin Lake, in Falls Lake, in Lake Tillery,
in Blewett Falls Lake, and in the New River and its
tributaries in Onslow County. In and west of
Madison, Buncombe. Henderson and Polk Counties (16)
and in designated public mountain trout waters the
minimum size limit is 12 inches. In B. Everett Jordan
Reser\'oir and in Falls of the Neuse Reservoir, east of
SR 1004, a minimum size limit of 16 inches, with no
exception, applies to largemouth bass. In Falls of
N e u se R ese rvoir, e ast of SR 1001. and Tuckertown
Lake no black bass beUseen the lengths of 12 inches
and 16 inches ma)' be retained, and the minimum size (17)
limit for black bass is 16 inches, except that the daily
creel may contain two black bass of less than 12 (18)
inches in length. In W. Kerr Scott Reservoir there is
no minimum size limit for spotted bass.
(8) A minimum size limit of 1 5 inches applies to walleye
taken from Lake James and its tributaries, and the
daih creel limit for walle\'e is four fish in Linville
River upstream from the NC 126 bridge above Lake
James.
(9) The creel limit for black bass and walleye taken from (19)
Calderwood Reservoir is 10.
(10) The minimum size limit for all black bass, with no
exception, is 18 inches in the following troph> bass
lakes:
(A) Cane Creek Lake in Union County;
(B) Lake Thom-A-Lex in Davidson Coimty; and
(C) Sutton Lake in New Hanover County.
In all impounded inland waters and their tributaries,
except those waters described in Exceptions ( I ) and
(5). the daily creel limit of striped bass and their
hybrids may include not more than two fish of smaller
size than the minimum size limit.
In Lake Tillery, Falls Lake, High Rock Lake, Badin
Lake, Tuckertown Lake, Lake Hyco, Lake Ram se ur
and Ramseur, Cane Creek Lake and the Roanoke
River downstream of the US 17 bridge in Williamston
and its tribuaries (including the Cashie. Middle and
Eastmost rivers and their tributaries) a daily creel limit
of 20 fish and a minimum size limit of 8 inches apply
to crappie. In Lake James, a daily creel limit of 20
fish applies to crappie.
In designated inland fishing waters of Roanoke
Sound, Croatan Sound, Albemarle Sound, Chowan
River, Currituck Sound, Alligator River, Scuppemong
River, and their tributaries (excluding the Roanoke
River and Cashie River and their tributaries), striped
bass fishing season, size limits and creel limits shall
be the same as those established by duly adopted rules
or proclamations of the Marine Fisheries Commission
in adjacent joint or coastal fishing waters.
The daily creel and length limits for channel, white,
and blue catfish in designated urban lakes are
provided for in 15ANCAC IOC .0401(d).
The Executive Director may, by proclamation,
suspend or extend the hook-and-line season for
striped bass in the inland and joint waters of coastal
rivers and their tributaries. It is unlawful to violate
the provisions of any proclamation issued under this
authority.
In the entire Lumber River from the Camp MacKall
bridge (SR 1225. at the point where Richmond.
Moore, Scotland, and Hoke counties join) to the
South Carolina state line and in all public fishing
waters east of 1-95, except Tar River Reservoir in
Nash County, the daily creel limit for sunfish is 30 in
aggregate, no more than 12 of which shall be
redbreast sunfish.
In Sutton Lake, no largemouth bass may be retained
from December 1 through March 3 1 .
In the Pee Dee River downstream from the Blewett
Falls dam. shad may be taken with special fishing
devices without restriction to creel limits as provided
for in 15A NCAC IOC .0404 (b) during the permitted
special fishing device seasons specified in 15A
NCAC IOC .0407. American and hickory shad taken
under this Subparagraph may be sold as authorized
under subsection IOC .0401.
The season for taking American and hickor> shad
with dip nets and bow nets is March \ through
April 30, except in Pee Dee River downstream
from Blewett Falls dam where the season
prescribed in 15A NCAC IOC .0407 (4) and (75)
966
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
is in effect.
NOTE: CREEL AND SIZE LIMITS is proposed for
amendment as follows with proposed changes with
bold text in (a) Shad, and (b)(19) previously
published in Volume 13, Issue 5, page 492 of the
North Carolina Register WITH CHANGES and
pending review by the Rules Review Commission
at its December meeting.
Authority G.S. 113-134: 113-292: 113-304: 113-305.
SECTION .0400 - NONGAME FISH
.0401 MANNER OF TAKING NONGAME FISHES:
PURCHASE AND SALE
(a) Except as permitted by the rules in this Section, it is
unlawful to take nongame fishes fi"om the inland fishing waters
of North Carolina in any manner other than with hook and line
or grabbling. Nongame fishes may be taken by hook and line or
grabbling at any time without restriction as to size limits or creel
limits, except that no trotlines or set-hooks may be used in the
impounded waters located on the Sandhills Game Land or in
designated public mountain trout wat e rs, and waters, m In Lake
Waccamaw, trotlines or set-hooks may be used only ft^om
October 1 through April 30. The season for taking nongame
fishes by other hook and line methods in designated public
mountain trout waters shall be the same as the trout fishing
season.
(b) Nongame fishes, except bowfin. taken by hook and line,
grabbling or by licensed special devices may be sold. Eels less
than six inches in length taken from inland waters may not be
sold and possession is limited to 200 per day for bait.
(c) Freshwater mussels may only be taken from impounded
waters, except mussels shall not be taken in Lake Waccamaw
and in University Lake in Orange County.
(d) In the posted Community Fishing Program waters listed
below it is unlawful to take channel, white or blue catfish
(forked tail catfish) by means other than hook and line; the daily
creel limit for forked tail catfish is six fish in aggregate:
Cedarock Pond, Alamance County
Little Park Pond. Anson County
Lake Tomahawk. Buncombe County
Frank Liske Park Pond. Cabarrus County
Lake Rim, Cumberland Count\'
C.G. Hill Memorial Park Pond, Forsyth County
Kemersville Lake. Forsyth County
Winston Pond. Forsvlh County
Bur-Mil Park Ponds, Guilford County
Oka T. Hester Pond, Guilford County
San-Lee Park Ponds, Lee County
Kinston Neuseway Park Pond. Lenoir County
Freedom Park Pond. Mecklenburg County
Hornet's Nest Pond. Mecklenburg County
McAlpine Lake. Mecklenburg County
Lake Luke Marion, Moore County
Lake Michael, Orange County
River Park North Pond, Pitt County
Big Elkin Creek, Surry County
Apex Lake, Wake County
Lake Crabtree. Wake County
Shelley Lake, Wake County
Simpkins Pond, Wake County
Lake Toisnot. Wilson County
Authority G.S. 113-134: 113-272: 113-292.
SUBCHAPTER lOD - GAME LANDS REGULATIONS
SECTION .0100 - GAME LANDS REGULATIONS
.0102 GENERAL REGULATIONS REGARDING USE
(a) Trespass. Entry on game lands for purposes other than
hunting, trapping or fishing shall be as authorized by the
landowner and there shall be no removal of any plants or parts
thereof, or other materials, without the written authorization of
the landowner. Travel is restricted, except by authorized
personnel, to direct access from SR 2074 to the established
waterfowl viewing stands on Cowan's Ford Waterfowl Refuge.
The Wildlife Resources Commission may designate areas on
game lands as either an Archery Zone, Saf e ty Zone Safety Zone.
Restricted Firearms, or Restricted Zone.
( 1 ) Archery Zone. On portions of game lands posted as
"Archery Zones" hunting is limited to bow and arrow
hunting only.
(2) Safety Zone. On portions of game lands posted as
"Safety Zones" hunting is prohibited. No person shall
hunt or discharge a firearm or bow and arrow within,
into, or across a posted safety zone on any game land.
(3) Restricted Firearms Zone. On portions of game lands
posted as "Restricted Firearms Zones" the use of
centerfire rifles is prohibited.
04(4') Restricted Zone. Portions of game lands posted as
"Restricted Zones" are closed to all use by the general
public, and entry upon such an area for any purpose is
prohibited without first having obtained specific
written approval of such entry or use from an
authorized agent of the Wildlife Resources
Commission.
f4-K5) Establishment of Arch e r>' Archery. Restricted
Firearms, and Restricted Zones. The Commission
shall conduct a public input meeting in the area where
the game land is located before establishing any
archery or restricted zone. After the input meeting the
public comments shall be presented to an official
Commission meeting for final determination.
(b) Littering. No person shall deposit any litter, trash,
garbage, or other reftise at any place on any game land except in
receptacles provided for disposal of such refuse at designated
camping and target-shooting areas. No garbage dumps or
sanitary landfills shall be established on any game land by any
person, firm, corporation, county or municipality, except as
permitted by the landowner.
(c) Possessionof Hunting Devices. It is unlawful to possess
a firearm or bow and arrow on a game land at any time except
during the open hunting seasons or hunting days for game birds
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December 15, 1998
wum
967
PROPOSED RULES
or game animals, other than fox, thereon unless said device is
cased or not immediate!) available for use, provided that such
devices may be possessed and used by persons participating in
field trials on field trial areas and on target shooting areas
designated by the landowner, and possessed in designated
camping areas for defense of persons and property ; and provided
further that .22 caliber pistols with barrels not greater than seven
and one-half inches in length and shooting only short, long, or
long rifle ammunition may be carried as side arms on game lands
at any time other than by hunters during the special bow and
arrow and muzzle-loading tlrearms deer hunting seasons and by
individuals training dogs during closed season without field trial
authorization. This Rule shall not prevent possession or use of
a bow and arrow as a licensed special fishing device in those
waters where such use is authorized. During the closed firearms
seasons on big game (deer, bear, boar, wild turkey), no person
shall possess a shotgun shell containing larger than No. 4 shot or
any rifle or pistol larger than a .22 caliber rimfire while on a
game land, except that shotgun shells containing any size steel
or non-toxic shot may be used while waterfowl hunting.
Furthermore, only shotguns with an> size shot may be possessed
during the big game season for turkey. No person shall hunt
with or have in possession any shotgun shell containing lead or
toxic shot while hunting on any posted waterfowl impoundment
on any game land, or while hunting waterfowl on Butner-Falls
of Neuse Game Land or New Hope Game Land, except shotgun
shells containing lead buckshot may be used while deer hunting.
(d) Game Lands License: Hunting and Trapping
( 1 ) Requirement. Except as provided in Subparagraph (2)
of this Paragraph, an\ person entering upon an\ game
land for the purpose of hunting, trapping, or
participating in dog training or field trial activities
shall have in his possession a game lands license in
addition to the appropriate hunting or trapping
licenses.
(2) Exceptions
(A) A person under 16 years of age may hunt on
game lands on the license of his parent or legal
guardian.
(B) The resident and nonresident sportsman's
licenses include game lands use privileges.
(C) Judges and nonresidents participating in field
trials under the circumstances set forth in
Paragraph (e) of this Rule may do so without
the game lands license.
(D) On the game lands described in Rule
.0003( e )(2) of thi s Subchapt e r .0103(e)(2) of
this Section the game lands license is required
only for hunting doves; all other activities are
subject to the control of the landowners.
(e) Field Trials and Training Dogs. A person serving as judge
of a field trial which, pursuant to a written request from the
sponsoring organization, has been officially authorized in
writing and scheduled for occurrence on a game land by an
authorized representative of the Wildlife Resources
Commission, and any nonresident participating therein may do
so without procuring a game lands license, provided such
nonresident has in his possession a valid hunting license issued
by the state of his residence. Any individual or organization
sponsoring a field trial on the Sandhills Field Trial grounds or
the Laurinburg Fox Trial facility shall file with the commission's
agent an application to use the area and facility accompanied by
the facility use fee computed at the rate of one hundred dollars
($100.00) for each scheduled day of the trial. The total facility
use fee shall cover the period from 12:00 noon of the day
preceding the first scheduled day of the trial to 10:00 a.m. of the
day following the last scheduled day of the trial. The facility use
fee shall be paid for all intermediate days on which for any
reason trials are not run but the building or facilities are used or
occupied. A fee of twenty-five dollars ($25.00) per day shall be
charged to sporting, educational, or scouting groups for
scheduled events utilizing the club house only. No person or
group of persons or any other entity shall enter or use in any
manner any of the physical facilities located on the Laurinburg
Fox Trial or the Sandhills Field Trial grounds without first
having obtained specific written approval of such entry or use
from an authorized agent of the Wildlife Resources Commission,
and no such entry or use of any such facility shall exceed the
scope of or continue beyond the specific approval so obtained.
The Sandhills Field Trial facilities shall be used only for field
trials scheduled with the approval of the Wildlife Resources
Commission. No more than 16 days of field trials may be
scheduled for occurrence on the Sandhills facilities during any
calendar month, and no more than four days may be scheduled
during any calendar week; provided, that a field trial requiring
more than four days may be scheduled during one week upon
reduction of the maximum number of days allowable during
some other week so that the monthK maximum of 1 6 days is not
exceeded. Before October 1 of each year, the North Carolina
Field Trial Association or other organization desiring use of the
Sandhills facilities between October 22 and November 18 and
between December 3 and March 3 1 shall submit its proposed
schedule of such use to the Wildlife Resources Commission for
its consideration and approval. The use of the Sandhills Field
Trial facilities at any time by individuals for training dogs is
prohibited; elsewhere on the Sandhills Game Lands dogs may be
trained only on Mondays. Wednesdays and Saturdays from
October 1 through April 1. Dogs may not be trained or
permitted to run unleashed from April 1 through August 15 on
any game land located west of 1-95. except when participating in
field trials sanctioned by the Wildlife Resources Commission.
Additionally, on game lands located west of 1-95 where special
hunts are scheduled for sportsmen participating in the Disabled
Sportsman Program, dogs may not be trained or allowed to run
unleashed during legal big game hunting hours on the dates of
the special hunts.
(f) Trapping. Subject to the restrictions contained in 15A
NCAC lOB ,0110, .0302 and .0303, trapping of furbearing
animals is permitted on game lands during the applicable open
seasons, except that trapping is prohibited:
(1) on the field trial course of the Sandhills Game Land;
(2) on the Harmon Den and Sherwood bear sanctuaries in
Haywood County;
(3) in posted "safety zones" located on any game land;
(4) by the use of multiple sets (with anchors less than 15
feet apart) or bait on the National Forest Lands
968
NORTH CAROLINA REGISTER
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PROPOSED RULES
bounded by the Blue Ridge Parkway on the south, US
276 on the north and east, and NC 2 1 5 on the west;
(5) on Cowan's Ford Waterfowl Refuge in Gaston.
Lincoln and Mecklenburg Counties;
(6) on the Hunting Creek Swamp Waterfowl Refuge;
(7) on the John's River Waterfowl Reflige in Burke
County;
(8) on the Dupont State Forest Game Lands.
On those areas of state-owned land known collectively as the
Roanoke River Wetlands controlled trapping is allowed under a
permit system.
(g) Use of Weapons. No person shall hunt or discharge a
firearm or bow and arrow from a vehicle, or within 200 yards of
any building or designated camping area, or within, into, or
across a posted "safety zone" on any game land. No person shall
hunt with or discharge a firearm within, into, or across a posted
"restricted zone" on any game land.
(h) Vehicular Traffic. No person shall drive a motorized
vehicle on any game land except on those roads constructed,
maintained and opened for vehicular travel and those trails
posted for vehicular travel, unless such person:
( 1 ) is a participant in scheduled bird dog field trials held
on the Sandhills Game Land; or
(2) holds a Disabled Access Program Permit as described
in Paragraph (n) of this Rule and is abiding by the
rules described in that Paragraph.
(i) Camping. No person shall camp on any game
land except on an area designated by the
landowner for camping. Camping and
associated equipment in designated Hunter
Camping Areas at Butner-Falls of the Neuse,
Caswell, and Sandhills Game Lands is limited
to Sept. 1- Feb. 29 and Apr. 7 - May 14.
(j) Swimming. Swimming is prohibited in the lakes located
on the Sandhills Game Land.
(k) Disabled Sportsman Program. In order to qualify for
special hunts for disabled sportsmen listed in 15A NCAC lOD
.0003 .0103 an individual shall have in their possession a
Disabled Sportsman permit issued by the Commission. In order
to qualify for the permit, the applicant shall provide medical
certification of one or more of the following disabilities:
( 1 ) amputation of one or more limbs;
(2) paralysis of one or more limbs;
(3 ) dysftinction of one or more limbs rendering the person
unable to perform the task of grasping and lifting with
the hands and arms or unable to walk without
mechanical assistance, other than a cane;
(4) disease or injury or defect confining the person to a
wheelchair, walker, or crutches; or
(5) legal deafriess, meaning the inabilify to hear or
understand oral communications with or without
assistance of amplification devices.
Participants in the program, except those qualify'ing by deafness,
may operate vehicles on ungated or open-gated roads normally
closed to vehicular traffic on Game Lands owned by the Wildlife
Resources Commission. Each program participant may be
accompanied by one able-bodied companion provided such
companion has in his possession the companion permit issued
with the Disabled Sportsman permit.
(1) Release of Animals and Fish. It is unlawful to release pen-
raised animals or birds, wild animals or birds, or hatchery-raised
fish on game lands without prior written authorization. Also, it
is unlawful to move wild fish from one stream to another on
game lands without prior written authorization.
(m) Non-Highway Licensed Vehicles. It is unlawful to
operate motorized vehicles not licensed for highway use from
May 15 through August 31 on all state-owned Game Lands.
Such vehicles may be operated September 1 through May 14
only on those roads constructed, maintained, and open for
vehicular fravel and those trails posted for vehicular use. All
operators of such vehicles shall have, in their possession, a valid
Game Lands Use license.
(n) Disabled Access Program. Permits issued under this
program shall be based upon competent medical evidence
submitted by the person verifying that a handicap exists that
limits physical mobility to the extent that normal utilization of
the game lands is not possible without vehicular assistance.
Persons meeting this requirement may operate elecfric wheel
chairs, all terrain vehicles, and other passenger vehicles on
ungated or open-gated roads otherwise closed to vehicular traffic
on game lands owned by the Wildlife Resources Commission
and on game lands whose owners have agreed to such use.
Those game lands where this special rule applies shall be
designated in the game land rules and map book. This special
access rule for disabled sportsmen does not permit vehicular
access on fields, openings, roads, paths, or trails planted to
wildlife food or cover. One able-bodied companion, who is
identified by a special card issued to each qualified disabled
person, may accompany a disabled person to provide assistance,
provided the companion is at all times in visual or verbal contact
with the disabled person. The companion may participate in all
lawfiil activities while assisting a disabled person, provided
license requirements are met. Any vehicle used by a qualified
disabled person for access to game lands under this provision
shall prominently display the vehicular access permit issued by
the Wildlife Resources Commission in the passenger area of the
vehicle. It shall be unlawful for anyone other than those holding
a Disabled Access Permit to hunt, during waterfowl season,
within 100 yards of a waterfowl blind designated by the Wildlife
Resources Commission as a Disabled Sportsman's hunting
blind.
Authority G.S. 113-134: 113-264;
113-291.5: 113-305: 113-306.
113-270.3: 113-291.2:
.0103 HUNTING ON GAME LANDS
(a) Safety Requirements. No person while hunting on any
designated game land shall be under the influence of alcohol or
any narcotic drug, or fail to comply with special restrictions
enacted by the National Park Service regarding the use of the
Blue Ridge Parkway where it adjoins game lands listed in this
Rule.
(b) Traffic Requirements. No person shall park a vehicle on
game lands in such a manner as to block traffic, gates or
otherwise prevent vehicles from using any roadway.
(c) Tree Stands. It is unlawful to erect or to occupy, for the
13:12
NORTH CAROLINA REGISTER December 15, 1998
969
PROPOSED RULES
purpose of hunting, any tree stand or platform attached by nails.
screws, bolts or wire to a tree on any game land designated
herein. This prohibition shall not apply to lag-screw steps or
portable stands that are removed after use with no metal left
remaining in or attached to the tree.
(d) Time and Manner of Taking. Except where closed to
hunting or limited to specific dates by this Chapter, hunting on
game lands is permitted during the open season for the game or
furbearing species being hunted. On managed waterfowl
impoundments, hunters shall not enter the posted impoundment
areas earlier than 4:00 a.m. on the permitted hunting dates, and
hunting is prohibited after 1 :00 p.m. on such hunting dates;
decoys shall not be set out prior to 4:00 a.m. and must be
removed by 3:00 p.m. each day. No person shall operate any
vessel or vehicle powered by an internal combustion engine on
a managed waterfowl impoundment. No person shall attempt to
obscure the sex or age of any bird or animal taken by severing
the head or any other part thereof or possess any bird or animal
which has been so mutilated. No person shall place, or cause to
be placed on any game land, salt, grain, fruit, or other foods
without prior written authorization of the commission or its
agent. A decision to grant or deny authorization shall be made
based on the best management practices for the wildlife species
in question. No person shall take or attempt to take any game
birds or game animals attracted to such foods. No live wild
animals or wild birds shall be removed from any game land.
(e) Definitions:
(1) For purposes of this Section "Eastern" season refers
to seasons set for those counties or parts of counties
listed in 15A NCAC lOB .0203(b)(1)(A); "Central"
season refers to seasons set for those counties or parts
ofcounties listed in 15ANCAC lOB .0203(b)(1)(D);
"Northwestern" season refers to seasons set for those
counties or parts ofcounties listed in 1 5 A NCAC lOB
.0203(b)( 1 )(B); "Western" season refers to seasons set
for those counties or parts ofcounties listed in 15A
NCAC lOB .0203(b)(1)(C).
(2) For purposes of this Section. "Dove Only Area" refers
to a Game Land on which doves may be taken and
dove hunting is limited to Mondays. Wednesdays.
Saturdays and to Thanksgiving. Christmas and New
Year's Days within the federally-announced season.
(3) For purposes of this Section. "Three Days per Week
Area" refers to a Game Land on which an\' game may
be taken during the open seasons and hunting is
limited to Mondays. Wednesdays, Saturdays and
Thanksgiving, Christmas and New Year's Days.
These "open days" also appK to either-sex hunting
seasons listed under each game land. Raccoon and
opossum hunting may continue until 7:00 a.m. on
Tuesdays, until 7:00 a.m. on Thursdays, and until
midnight on Saturdays.
(4) For purposes of this Section, "Six Days per Week
Area" refers to a Game Land on which any game may
be taken during the open seasons, except that:
(A) Bears shall not be taken on lands designated
and posted as bear sanctuaries;
(B) Wild boar shall not be taken with the use of
dogs on such bear sanctuaries, and wild boar
may be hunted only during the bow and arrow
seasons, the muzzle-loading deer season and
the regular gun season on male deer on bear
sanctuaries;
(C) On game lands open to deer hunting located in
or west of the counties of Rockingham,
Guilford, Randolph, Montgomery and Anson,
the following rules apply to the use of dogs
during the regular season for hunting deer with
guns:
(i) Except for the counties of Cherokee,
Clay, Graham, Jackson, Macon,
Madison. Polk, and Swain, game birds
may be hunted with dogs.
(ii) In the counties of Cherokee, Clay,
Graham, Jackson, Macon, Madison,
Polk, and Swain, small game in season
may be hunted with dogs on all game
lands except on bear sanctuaries.
(D) On bear sanctuaries in and west of Madison.
Buncombe. Henderson and Polk counties dogs
shall not be trained or allowed to run unleashed
between March 1 and the Monday on or
nearest October 15;
(f) Game Lands Seasons and Other Restrictions:
(1 ) Alcoa Game Land in Davidson. Davie. Montgomery,
Rowan and Stanly counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(2) Angola Bay Game Land in Duplin and Pender
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
(3) Anson Game Land in Anson County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(4) Bachlelor Bay Game Land in Bertie and Washington
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(5) Bertie County Game Land in Bertie County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
(^ Blad e n County Gam e Land in Bladen County
(A) Six Day s p e r W ee k Ar e a
(B) D ee r of e ith e r s e x may b e tak e n all the op e n
days of the applicabl e Doer With Visibl e
970
NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
Antl o r i j Sea s on.
(€) — A special p e rmit is r e quir e d for hunting on th e
Suggs Mill Pond portion of th e Blad e n County f^3 ¥in
Gom e Lands.
t-^6) Bladen Lakes State Forest Game Land in Bladen
' County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
Deer of either sex may also be taken the
Saturday preceding Eastern bow season with
bow and arrow and the Friday preceding the
Eastern muzzle-loading season with any legal
weapon (with weapons exceptions described in
this Paragraph) by participants in the Disabled
Sportsman Program.
(C) Handguns shall not be carried and, except for f4J4 (12)
muzzle-loaders, rifles larger than .22 caliber
rimfire shall not be used or possessed. (44- K13)
(D) On the Breece Tract and the Singletary Tract
deer and bear may be taken only by still
hunting.
(E) Wild turkey hunting is by permit only.
{%¥.!) Brushy Mountains Game Land in Caldwell County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six fl44 (14)
open days of the applicable Deer With Visible
Antlers Season.
W(8) Bullard and Branch Hunting Preserve Game Lands in
Robeson County
(A) Three Days per Week Area <4^15)
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
f-l-fr>(9) Butner - Fails of Neuse Game Land in Durham,
Granville and Wake counties f}-y K16)
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
(C) Waterfowl may be taken only on Tuesdays,
Thursdays and Saturdays, Christmas and New
Year's Days, and on the opening and closing fW (17)
days of the applicable waterfowl seasons.
Waterfowl shall not be taken after 1:00 p.m.
On the posted waterfowl impoundments a
special permit is required for all waterfowl
hunting after November 1 .
(D) Horseback riding, including all equine species, f-W (18)
is prohibited.
(E) Target shooting is prohibited
(F) Wild turkey hunting is by permit only.
W- XlO) Cape Fear Game Land in Pender County
(A) Six Days per Week Area (30^19)
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
(C) Turkey Hunting is by permit only on that
portion known as the Roan Island Tract.
Caswell Game Land in Caswell County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season. Deer of either sex may also be
taken the Friday preceding the Central muzzle-
loading season by participants in the Disabled
Sportsman Program.
(C) Horseback riding is allowed only during June,
July, and August and on Sundays during the
remainder of the year except during open
turkey and deer seasons. Horseback riding is
allowed only on roads opened to vehicular
traffic. Participants must obtain a game lands
license prior to engaging in such activity.
Caswell Farm Game Land in Lenoir County
(A) Dove-Only Area
Catawba Game Land in Catawba and Iredell counties
(A) Three Days per Week Area
(B) Deer of either sex may be taken the last open
day of the applicable Deer With Visible
Antlers Season.
(C) Deer may be taken with bow and arrow only
from the tract known as Molly's Backbone.
Chatham Game Land in Chatham County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
Cherokee Game Land in Ashe County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
Cherry Farm Game Land in Wayne County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
(C) The use of centerfire rifles and handguns is
prohibited.
Chowan Game Land in Chowan County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days, open days the week of
Thanksgiving, and the last six open days of the
applicable Deer With Visible Antlers Season.
Chowan Swamp Game Land in Gates County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
Columbus County Game Land in Columbus County.
(A) Three Days per Week Area
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
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NORTH CAROLINA REGISTER
December 15, 1998
971
PROPOSED RULES
0^22)
(B)
(C)
(D)
(B)
tQ
Antlers Season.
(34- )(20) Croatan Game Land in Carteret, Craven and Jones
counties
(A) Six Days per Weei< Area
(B) Deer of either sex may be taken tiie first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(C) Waterfowl may be taken only on Mondays, (3*)(27}
Wednesdays, Saturdays; on Thanksgiving,
Christmas and New Year's Days; and on the
opening and closing days of the applicable
waterfowl seasons.
(33){2_!J Dare Game Land in Dare County
(A) Six Days per Week Area
Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
No hunting on posted parts of bombing range. (39 ^28)
The use and training of dogs is prohibited from
March 1 through June 30.
Dupont State Forest Game Lands in Henderson and
Transylvania counties
(A) Hunting is by Permit only. (5d){29}
The training and use of dogs for hunting except
during scheduled small game permit hunts for
squirrel, grouse, rabbit, or quail is prohibited.
Participants of the Disabled Sportsman
Program may also take deer of either sex with
any legal weapon on the Saturday prior to the
first segment of the Western bow and arrow
season.
f34- K23) Dysartsville Game Land in McDowell and Rutherford
counties
(A) Six Days per Week Area (34)(30}
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
f3 ^24) Elk Knob Game Land in Ashe and Watauga counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six {53X1U
open days of the applicable Deer With Visible
Antlers Season.
{34)£25J Gardner- Webb Game Land in Cleveland County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible (^ ^32)
Antlers Season.
(37)t26j Goose Creek Game Land in Beaufort and Pamlico
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(C) On posted waterfowl impoundments waterfowl
may be taken only on Mondays, Wednesdays,
Saturdays; on Thanksgiving, Christmas and
New Year's Days; and on the opening and
closing days of the applicable waterfowl
seasons. After November 1, on the Pamlico
Point, Campbell Creek, Hunting Creek and
Spring Creek impoundments, a special permit
is required for hunting on opening and closing
days of the duck seasons, Saturdays of the
duck seasons, and on Thanksgiving and New
Year's day.
Green River Game Land in Henderson, Polk and
Rutherford counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season in that portion in Rutherford
County; and deer of either sex may be taken the
last open day of the applicable Deer With
Visible Antlers Season in that portion in Polk
and Henderson counties.
Green Swamp Game Land in Brunswick County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
Gull Rock Game Land in Hyde County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(C) On the posted waterfowl impoundments of
Gull Rock Game Land hunting of any species
of wildlife is limited to Mondays, Wednesdays,
Saturdays; Thanksgiving, Christmas, and New
Year's Days; and the opening and closing days
of the applicable waterfowl seasons.
Hickorynut Mountain Game Land in McDowell
County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
Hofmann Forest Game Land in Jones and Onslow
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
Holly Shelter Game Land in Pender County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season. Deer of either sex may also be
taken the Friday preceding the Eastern muzzle-
loading season with any legal weapon and the
Saturday preceding Eastern bow season with
bow and arrow by participants in the Disabled
Sportsman Program
(C) Waterfowl may be taken on the opening and
closing days of the applicable waterfowl
seasons regardless of the day of the week on
972
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13:12
PROPOSED RULES
which they occur.
(34 ¥33) Huntsville Community Farms Game Land in Yadkin
County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the last open
day of the applicable Deer With Visible
Antlers Season.
f^ ^34) Hyco Game land in Person County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
{54){35} Jordan Game Land in Chatham, Durham, Orange and
Wake counties f43 ¥41)
(A) Six Days per Week Area
Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
Waterfowl may be taken only on Mondays, f4 ^42)
Wednesdays, Saturdays; on Thanksgiving,
Christmas and New Year's Days; and on the
opening and closing days of the applicable
waterfowl seasons.
Horseback riding, including all equine species, (44){43j
is prohibited.
Target shooting is prohibited.
Wild turkey hunting is by permit only.
f37 y36) Lantern Acres Game Land in Tyrrell and Washington
counties
(A) Six Days per Week Area H^44)
(B) Deer of either sex may be taken the first six
open days, open days the week of
Thanksgiving, and the last six open days of the
applicable Deer With Visible Antlers Season.
^37) Lee Game Land in Lee County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six f44 ¥45)
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(-394 (38) Linwood Game Land in Davidson County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(40 ^39) Moore Game Land in Moore County
(A) Six Days per Week Area (474(46)
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(444 (40) Nantahala Game Land in Cherokee. Clay. Graham,
Jackson, Macon, Swain and Transylvania counties f4& 4(47)
(A) Six Days per Week Area
Deer of either sex may be taken the last open
day of the applicable Deer With Visible
Antlers Season in that portion located in
Transylvania County.
Raccoon and opossum may be hunted only
from sunset Friday until sunrise on Saturday
(B)
(C)
(D)
(E)
(F)
and from sunset until 12:00 midnight on
Saturday on Fires Creek Bear Sanctuary in
Clay County and in that part of Cherokee
County north of US 64 and NC 294, east of
Persimmon Creek and Hiwassee Lake, south of
Hiwassee Lake and west of Nottely River; in
the same part of Cherokee County dog training
is prohibited from March 1 to the Monday on
or nearest October 15.
(B) It is unlawfiil to train dogs or allow dogs to run
unl e ashed on any gam e land in Graham County
b e tw ee n March 1 and th e Monday on or
n e ar e st Octob e r 15.
Neuse River Game Land in Craven County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
New Lake Game Land in Hyde County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
North River Game Land in Currituck County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days, open days the week of
Thanksgiving, and the last s\x open days of the
applicable Deer With Visible Antlers Season.
Northwest River Marsh Game Land in Currituck
County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the fu-st six
open days, open days the week of
Thanksgiving, and the last six open days of the
applicable Deer With Visible Antlers Season.
Pee Dee River Game Land in Anson, Montgomery,
Richmond and Stanly counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last six open days of the
applicable Deer With Visible Antlers Season.
(C) Use of centerfire rifles prohibited in that
portion in Anson and Richmond counties North
ofUS-74.
Perkins Game Land in Davie County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the last open
day of the applicable Deer With Visible
Antlers Season.
Person Game Land in Person County
(A) Six Days per Week Area
(B)
(C)
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■OHBaOHH
973
PROPOSED RULES
(B) Deer of either sex ma\ be taken the first six
open da\'s and the last six open days of the
applicable Deer With Visible Antlers Season.
(C) Waterfowl ma\ be taken onK on Tuesdays,
Thursdays and Saturdays. Christmas and New
Year's Days, and on the opening and closing
days of the applicable waterfowl seasons.
f-W (48) Pisgah Game Land in Averv. Buncombe. Burke.
Caldwell. Ha>-wood. Henderson. Madison.
McDowell. Mitchell. Transylvania, Watauga and
Yancey counties
(A) Six Days per Week Area
(B) Deer of either sex ma\' be taken the last open
day of the applicable Deer With Visible
Antlers Season except on that portion of Aven.-
County north of the Blue Ridge ParkwaN and
that portion in Haywood Count\ encompassed
b>' US 276 on the north. US 74 on the west,
and the Blue Ridge Parkway on the south and
east.
(C) Harmon Den and Sherwood Bear Sanctuaries
in Haywood County are closed to hunting
raccoon, opossum and wildcat. Training
raccoon and opossum dogs is prohibited from
March 1 to the Monda\ on or nearest October
1 5 in that part of Madison Count> north of the
French Broad River, south of US 25-70 and
west of SR 1319.
(404 (49) Pungo River Game Land in Hyde Count>
(A) Six Days per Week Area
(B) Deer of either sex ma\ be taken the first six
open days and the last six open da\'s of the
applicable Deer With Visible Antlers Season.
(444(50) Roanoke River Wetlands in Bertie. Halifax and
Martin counties
(A) Hunting is b> Permit only. Vehicles are
prohibited on roads or trails except those
operated on official Commission business or
b> permit holders.
(424 (51) Robeson Game Land in Robeson Count}
(A) Three Da\ s per Week Area
(B) Deer of either sex ma\ be taken the last six
open da>s of the applicable Deer With Visible
Antlers Season.
(4 ^52) Sampson Game Land in Sampson Count)
(A) Three Days per Week Area
(B) Deer of either sex ma\ be taken all the open
da\s of the applicable Deer With Visible
Antlers Season.
(444 (53) Sandhills Game Land in Moore. Richmond and
Scotland counties
(A) Three Days per Week Area
(B) The Deer With Visible Antlers season for deer
consists of the open hunting dates from the
second Monday before TTianksgiving through
the third Saturda> after Thanksgiving except on
the field trial grounds \s here the gun season is
from the second Mondav before Thanksgiving
(4§4{54}
(55
(C)
(D)
(E)
(F)
tGJ
through the Saturday following Thanksgiving.
Deer may be taken with bow and arrow on all
open hunting dates during the bow and arrow
season, as well as during the regular gun
season. Deer may be taken with muz-
zle-loading firearms on Monday. Wednesday
and Saturday of the second week before
Thanksgiving week, and during the Deer With
Visible Antlers season.
Gun either-sex deer hunting is by permit only
the Thiirsday and Friday before Thanksgiving
Week. For participants in the Disabled
Sportsman Program, either-sex deer hunting
with any legal weapon is permitted on all areas
the Thursdav' and Friday prior to the muzzle-
loading season described in the preceding
paragraph. Except for the deer seasons
indicated in the preceding paragraph and the
managed either-sex permit hunts, the field trial
grounds are closed to all hunting during the
period October 22 to March 3 1 .
In addition to the regular hunting days,
waterfowl may be taken on the opening and
closing days of the applicable waterfowl
seasons
Wild turkey hunting is by permit onh'.
Dove hunting on the field trial grounds will be
prohibited from the second Sunda\ in
September through the remainder of the
hunting season.
No all terrain vehicles shall be used on the J.
Robert Gordon Field Trial Area except by
licensed hunters during deer and dove open
seasons pursuant to 15ANCAC 10D.0102(m).
Sauratown Plantation Game Land in Stokes County
(A) Tiiree Days per Week Area
(B) Deer of either sex may be taken the last open
day of the applicable Deer With Visible
Antlers Season.
Scuppemong Game Land in T\Trell and Washington
counties
(A) Six Davs per Week Area
(B) Deer of either sex ma\ be taken the first six
open davs. open da\'s the week of
Thanksgiving, and the last six open da\s of the
applicable Deer With Visible Antlers Season.
(56) Shearon Harris Game Land in Chatham and Wake
counties
(A) Six Days per Week Area
(B) Deer of either sex ma\ be taken the first six
open da>'s and the last six open da\ s of the
applicable Deer With Visible Antlers Season.
(C) Waterfowl ma> be taken onl\ on Tuesda>s.
Fridays. Saturdays: on Thanksgiving.
Christmas and New Year's Da\s; and on the
opening and closing da>s of the applicable
waterfowl seasons.
(57) South Mountains Game Land in Burke. Cleveland.
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NORTH CAROLINA REGISTER
December 15, 1998
13:12
PROPOSED RULES
McDowell and Rutherford counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
(58) Suggs Mill Pond Game Land in Bladen County :
Hunting is by Permit only.
(#*){59} Sutton Lake Game Land in New Hanover County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
(#9)£60} Three Top Mountain Game Land in Ashe County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
f60 ^61) Thurmond Chatham Game Land in Wilkes County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season. Participants of the Disabled
Sportsman Program may also take either-sex
deer with bow and arrow on the Saturday prior
to Northwestern bow and arrow season.
(C) Horseback riding is only allowed during June,
July, and August and on Sundays during the
remainder of the year except during open
turkey and deer seasons. Horseback riding is
allowed only on roads opened to vehicular
traffic. Participants must obtain a game lands
license prior to horseback riding on this area.
(44-){62} Toxaway Game Land in Transylvania County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last open
day of the applicable Deer With Visible
Antlers Season. Participants of the Disabled
Sportsman Program Door may also take deer of
either sex with any legal weapon on the
Saturday prior to the first segment of the
Western bow and arrow season.
(63 4(63) Uwharrie Game Land in Davidson, Montgomery and
Randolph counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the first six
open days and the last open six days of the
applicable Deer With Visible Antlers Season.
{6^X64} Vance Game Land in Vance County
(A)
(B)
(C)
Six Days per Week Area
Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
The use of dogs, centerfire rifles and handguns
for hunting deer is prohibited on the Nutbush
Peninsula tract.
(64 )(65) White Oak River Impoundment Game Land in
Onslow County
(A) Three Days per Week Area
(B) Deer of either sex may be taken all the open
days of the applicable Deer With Visible
Antlers Season.
(C) Waterfowl may be taken on the opening and
closing days of the applicable waterfowl
seasons regardless of the day of the week on
which they occur.
{6#X66j Yadkin Game Land in Caldwell County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the last six
open days of the applicable Deer With Visible
Antlers Season.
(g) On permitted type hunts deer of either sex may be taken
on the hunt dates indicated on the permit. Completed
applications must be received by the Commission not later than
the first day of September next preceding the dates of hunt.
Permits shall be issued by random computer selection, shall be
mailed to the permittees prior to the hunt, and shall be
nontransferable. A hunter making a kill must tag the deer and
report the kill to a wildlife cooperator agent or by phone.
(h) The following game lands and refiiges shall be closed to
all hunting except to those individuals who have obtained a valid
and current permit from the Wildlife Resources Conunission:
Bertie, Halifax and Martin counties—Roanoke River
Wetlands;
Bertie County-Roanoke River National Wildlife
Refuge.
Burke County—John's River Waterfowl Refuge
Dare County-Dare Game Lands (Those parts of
bombing range posted against hunting)
Davie— Hunting Creek Swamp Waterfowl Refuge
Gaston, Lincoln and Mecklenburg counties-Cowan's
Ford Waterfowl Refuge.
Henderson and Transylvania counties— Dupont State
Forest Game Lands
Authority'
113-305.
G.S. 113-134: 113-264; 113-291.2; 113-291.5;
13:12
NORTH CAROLINA REGISTER
December 15, 1998
975
TEMPORAR Y RULES
The Codifier of Rules has entered the following temporary rulels) in the North Carolina Administrative Code. Pursimnt to G.S.
150B-21. He), publication of a temporary rule in the North Carolina Register ser\'es as a notice of rule-making proceedings
unless this notice has been previously published by the agency.
TITLE ISA - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
Rule-making Agency: Coastal Resources Commission
Rule Citation: ISA NCAC 7 M .0401 - .0403
EfTective Date: December 22. 1998
Findings Reviewed by Julian Mann III: .Approved
Authority for the rule-making: G.S. 113.4-24: 113.4-102(b/:
113.4-10'
Reason for Proposed Action: A reviev,' of the current rules
and scientific literature identified a need to make minor
amendments to the energy policies to protect key fisheries
habitat and endangered seabirds from potential impacts from
offshore development or energy resources.
Comment Procedures: Contact Kim Crawford. NC Division
of Coastal Management. PO Box 2768'. Raleigh. NC 27611-
7687. (919) 733-2293. by January 4. 1999.
CHAPTER 7 - COASTAL MANAGEMENT
SUBCHAPTER 7M - GENERAL POLICY
GUIDELINES FOR THE COASTAL AREA
SECTION .0400 - COASTAL ENERGY POLICIES
.0401 DECLARATION OF GENERAL POLICY
(a) It is hereby declared that the general welfare and public
interest require that reliable sources of energy be made available
to the citizens of North Carolina. It is further declared that the
development of energy facilities and energy' resources within the
state and in offshore waters can serve important regional and
national interests. However, unwise development of energy
facilities or energ\ resources can conflict with the recognized
and equal K important public interest that rests in conserving and
protecting the valuable land and water resources of the state and
nation. particularK coastal lands and waters. Therefore, in order
to balance the public benefits attached to necessary energy
development against the need to protect valuable coastal
resources, the planning of future land uses, the exercise of
regulatory authoritv. and determinations of consistencv with the
North Carolina Coastal Management Program shall assure that
the development of energv facilities and energy resources shall
avoid significant adverse impact upon vital coastal resources or
uses, public trust areas and public access rights.
(b) Exploration for the development of offshore and Outer
Continental Shelf (OCS) energy resources has the potential to
affect coastal resources. The Federal Coastal Zone Management
Act of 1972. as amended, requires that federal oil and gas
leasing actions of the US Department of the Interior be
consistent to the maximum extent practicable with the
enforceable policies of the federally approved North Carolina
Coastal Management Program, and that exploration,
development and production activities associated with such
leases comply with those enforceable policies. Enforceable
policies applicable to OCS activities include all the provisions
and policies of this Rule, as well as any other applicable
federally approved components of the North Carolina Coastal
Management Program. All permit applications, plans and
assessments related to exploration or development of OCS
resources and other relevant energy facilities must contain
sufficient information to allow adequate analysis of the
consistency of all proposed activities with these Rules and
policies.
History Note: Authorit\- G.S. 113A-102{b): 113A-107:
113A-124:
Eff. March 1. 1979;
Amended Eff November 3. 1997 pursuant to E.O. 121. James B.
Hunt Jr. 199'':
Temporary Amendment Eff. December 22, 1998.
.0402 DEFINITIONS
(a) "Impact Assessment" is an analysis which fully discusses
the potential environmental, economic and social consequences
of a proposed project. At a minimum, the assessment shall
include the following information: and for each of the following
shall discuss and assess any effects on any land or water use or
natural resource of the coastal area, including the effects within
the coastal area caused by activities outside the coastal area.
(1) a full discussion of the preferred sites for those
elements of the project affecting any land or water use
or natural resource of the coastal area.
(A) In all cases where the preferred site is located
within an area of environmental concern
(AEC) or on a barrier island, the applicant shall
identify' alternative sites considered and present
a full discussion [in terms of Subparagraphs
(a)(2) through (8) of this Rule] of the reasons
whv' the chosen location was deemed more
suitable than another feasible alternate site.
(B) If the preferred site is not located within an
AEC or on a barrier island, the applicant shall
present reasonable evidence to support the
proposed location over a feasible alternate site.
(C) In those cases where an applicant chooses a
site previously identified by the state as
suitable for such development and the site is
outside an AEC or not on a barrier island,
alternative site considerations shall not be
required as part of this assessment procedure;
976
NORTH CAROLINA REGISTER
December 15, 1998
13:12
TEMPORAR Y RULES
(2) a full discussion of the economic impacts, both
positive and negative, of the proposed project. This
discussion shall focus on economic impacts to the
public, not on matters that are purely internal to the
corporate operation of the applicant. No proprietary
* or confidential economic data shall be required. This
discussion shall include analysis of likely adverse
impacts upon the ability of any governmental unit to
furnish necessary services or facilities as well as other
secondary impacts of significance;
(3) a full discussion of potential adverse impacts on
ostuarin e or coastal r e sourc e s, coastal, including
marine and estuarine resources and wildlife resources,
as defined in G.S. 113A-129:
(4) a full discussion of potential adverse impacts on
existing industry and potential limitations on the
availability of natural resources, particularly water,
for fiiture industrial development;
(5) a full discussion of potential significant adverse
impacts on recreational uses and scenic,
archaeological and historic resources;
(6) a full discussion of potential risks of danger to human
life or property;
(7) a full discussion of the procedures and time needed to
secure an energy facility in the event of severe
weather conditions, such as extreme wind, currents
and waves due to northeasters and hurricanes;
f?) £8} other specific data necessary for the various state and
federal agencies and commissions with jurisdiction to
evaluate the consistency of the proposed project with
relevant standards and guidelines;
(^{9} a specific demonstration that the proposed project is
consistent with relevant local land use plans and with
guidelines governing land uses in AECs.
If appropriate environmental documents are prepared and
reviewed under the provisions of the National Environmental
Policy Act (NEPA) or the North Carolina Environmental Policy
Act (NCEPA), this review will satisfy this definition of "impact
assessment" if all issues listed in this Rule are addressed and
these documents are submitted in sufficient time to be used to
review state permit applications for the project or subsequent
consistency determinations.
(b) "Major energy facilities" are those energy facilities which
because of their size, magnitude or scope of impacts, have the
potential to affect any land or water use or natural resource of
the coastal area. For purposes of this definition, major energy
facilities shall include, but are not necessarily limited to, the
following:
(1) Any facility capable of refining oil;
(2) Any terminals (and associated facilities) capable of
handling, processing, or storing liquid propane gas,
liquid natural gas, or synthetic natural gas;
(3) Any oil or gas storage facility that is capable of
storing 15 million gallons or more on a single site;
(4) Electric generating facilities 300 MOW or larger;
(5) Thermal energy generation;
(6) Major pipelines 12 inches or more in diameter that
carry crude petroleum, natural gas, liquid natural gas.
liquid propane gas, or synthetic gas;
(7) Structures, including drillships and floating platforms
and structures relocated from other states or countries,
located in offshore waters for the purposes of
exploration for, or development or production of, oil
or natural gas; and
(8) Onshore support or staging facilities related to
exploration for, or development or production of, oil
or natural gas.
(c) "Offshore waters" are those waters seaward of the state's
three-mile offshore jurisdictional boundary in which
development activities may impact any land or water use or
natural resource of the state's coastal area.
History Note: Authoritv G.S. 113A-} 02(b); U3A-107:
113A-124:
Eff. March 1. 1979;
Amended Eff. October 1, 1988;
Amended Eff. November 3. 1997 pursuant to E.O. 121, James B.
Hunt Jr., 1997;
Temporary Amendment Eff. December 22. 1998.
.0403 POLICY STATEMENTS
(a) The placement and operations of major energy facilities in
or affecting any land or water use or natural resource of the
North Carolina coastal area shall be done in a manner that allows
for protection of the environment and local and regional
socio-economic goals as set forth in the local land-use plan(s)
and State guidelines in 15A NCAC 7H and 7M. The placement
and operation of such facilities shall be consistent with
established state standards and rules and shall comply with local
land use plans and with guidelines for land uses in AECs.
(b) Proposals, plans and permit applications for major energy
facilities to be located in or affecting any land or water use or
natural resource of the North Carolina coastal area shall include
a full disclosure of all costs and benefits associated with the
project. This disclosure shall be prepared at the earliest feasible
stage in plarming for the project and shall be in the form of an
impact assessment prepared by the applicant as defined in 1 5A
NCAC 7M .0402.
(c) Local governments shall not unreasonably restrict the
development of necessary energy facilities; however, they may
develop siting measures that will minimize impacts to local
resources and to identify potential sites suitable for energy
facilities.
(d) Energy facilities that do not require shorefront access
shall be sited inland of the shoreline areas. In instances when
shoreline portions of the coastal zone area are necessary
locations, shoreline siting shall be acceptable only if it can be
demonstrated that coastal resources and public trust waters will
be adequately protected, the public's right to access and passage
will not be unreasonably restricted, and all reasonable mitigating
measures have been taken to minimize impacts to AECs.
(e) The scenic and visual qualities of coastal areas shall be
considered and protected as important public resources. Energy
development shall be sited and designed to provide maximum
protection of views to and along the ocean, sounds and scenic
coastal areas, and to minimize the alteration of natural
13:12
NORTH CAROLINA REGISTER
December 15, 1998
977
TEMPORAR Y R ULES
landforms.
(0 All energy facilities in or affecting any land or water use
or natural resource of the coastal area shall be sited and operated
so as to b e consist e nt comply with the following criteria, to th e
maximum e xt e nt practicabl e. (7)
(1) Risks of environm e ntal harm to fish spovsTiing ar e as.
in or affecting th e coastal ar e a, shall b e ass esse d and (8)
minimized. Adverse impacts on resources of the
coastal area, including marine and estuarine resources
and wildlife resources, as defined in G.S. 1 13A-129.
and adverse impacts on land or water uses in the
coastal area shall be avoided unless site specific (9)
information demonstrates that there will be no adverse
impacts on land or water uses or natural resources of
the coastal area.
(2) Risks of environmental harm to coastal resources and
uses shall be assessed and minimized. Necessary data
and information required by the state for state permits ( 1 0)
and federal consistency reviews, pursuant to 15 CFR
part 930, shall completely assess the risks of oil spills,
evaluate possible trajectories, and enumerate response
and mitigation measures employing the best available
technolog}' to be followed in the event of a spill. The
information must demonstrate that the potential for oil
spills and ensuing damage to coastal resources has
been minimized and shall factor environmental
conditions, currents, winds, and inclement events such
as northeasters and hurricanes, in trajectorv scenarios.
For facilities requiring an Oil Spill Conting e ncy
Response Plan, this information shall be included in
such a plan.
(3) Dredging, spoil disposal and construction of related
structures that are reasonably likelv' to affect any land
or water use or natural resource of the coastal area
shall be minimized, and any unavoidable actions of
this sort shall minimize damage to the marine
environment.
(4) Damage to or interference with existing or traditional
uses, such as fishing, navigation and access to public
trust areas, and areas with high biological or
recreational value, shal 1 be avoided to the extent that (11)
such damage or interference is reasonablv likely to
affect any land or water use or natural resource of the
coastal area.
(5) Placement of structures in geologically unstable areas,
such as unstable sediments and active faults, shall be
avoided to the extent that damage to such structures
resulting from geological phenomena is reasonably
likely to affect any land or water use or natural
resource of the coastal area.
(6) Wildlif e d es truction or r e location shall b e ass es s e d
and minimiz e d to th e e xt e nt that s uch d e struction or (12)
r e location is r e asonabU lik e ly to aff e ct any land or
wat e r u se or natural r es ourc e of th e coastal ar e a.
Procedures necessary to secure an energy facility in (13)
the event of severe weather conditions, such as
extreme wind, currents and waves due to northeasters
and hurricanes, shall be initiated sufficiently in
advance of the commencement of severe weather to
ensure that adverse impacts on any land or water use
or natural resource of the coastal area shall be
avoided.
Adverse impacts on species identified as threatened or
endangered on Federal or State lists shall be avoided.
Major energy facilities are not appropriate uses in
fragile or historic areas, and other areas containing
environmental or natural resoitrces of more than local
significance, such as parks, recreation areas, wildlife
refuges, and historic sites.
No energy facilities shall be sited in areas where they
pose a threat to the integrity of the facility and
surrounding areas, such as ocean front areas with high
erosion rates, areas having a history of overwash or
inlet formation, and areas in the vicinity of existing
inlets.
In the siting of energy facilities and related structures,
the following areas shall be avoided to the maximum
extent practicabl e : feasible:
(A) areas of high biological significance, including
offshore reefs, rock outcrops and hard bottom
areas, sea turtle nesting beaches, freshwater
and saltwater wetlands, primary nursery' areas,
submerged aquatic vegetation beds, shellfish
beds, anadromous fish spawning and nursery
areas, and colonial bird nesting colonies;
major tracts of maritime forest and other
important natural areas as identified by the
North Carolina Natural Heritage Program;
crossings of sfreams, rivers, and lakes except
for existing readily-accessible corridors;
anchorage areas and congested port areas;
artificial reefs, shipyvrecks, and submerged
archaeological resources;
dump sites;
areas of large dunes or well-developed frontal
dune systems;
heavily developed and heavily used recreation
areas.
Where impacts — en — th e s e the areas listed
(B)
(C)
(D)
(E)
(F)
(G)
(H)
m
Subparagraph (jQ (10) ofthis Rule cannot be avoided,
and the impact siting of the energy facility affects any
land or water use or natural resource of the coastal
area, damage due to siting shall be mitigated to the
maximum extent practicabl e feasible and jn
compliance with any other standard in this Section.
and affected areas shall be restored to their original
functions pursuant to a plan of reclamation, which
must be a part of the consistency determination or
permit.
Construction of energy facilities shall occur only
during periods of lowest biological vulnerability'.
Nesting and spawning periods shall be avoided.
If facilities located in the coastal area are abandoned,
habitat of equal value to or greater than that existing
prior to construction shall be restored as soon as
practicable following abandonment. For abandoned
978
NORTH CAROLINA REGISTER
December 15, 1998
13:12
TEMPORAR Y R ULES
facilities outside the coastal area, habitat in the areas
shall be restored to its preconstruction state and
functions as soon as practicable if the abandonment of
the structure is reasonably likely to affect any land or
water use or natural resource of the coastal area.
History Note: Authority G.S. 113A-1 02(b); 1134-107;
113A-124;
Eff. March 1. 1979;
Amended Eff. April 1, 1992;
Amended Eff. November 3. 1997 pursuant to E.O. 121. James B.
Hunt Jr. 1997;
Temporary' Amendment Eff. December 22, 1998.
'k-k'k-k-k'k'k-kic-k-kit-k-k'kit-k-k-k-k
Rule-making Agency: Division of Environmental Health
Rule Citation: 15A NCAC 18A . 1611
Effective Date: January 1. 1999
Findings Reviewed by Beecher R. Gray: Approved
Authority for the rule-making: G.S. 95-225; 130A-5(3);
130A-230; BOA 235; 130A-236; 130-248; 130A-257
Reason for Proposed Action: The proposed temporary' rule is
presented in response SB 11 71. This Bill requires that no later
than January 1. 1999. the Commission for Health Services adopt
a temporary rule in accordance with G.S. 150B- 21.1 that
provides specific guidelines for waiving the existing water
supply well setback requirements contained in 15A NCAC 18A
.1720 for institutions and facilities located in single-family
dwellings. The Bill requires that the Commission determine
specific criteria under which 15A NCAC 18A .1720 may be
waived while still protecting the public health.
Comment Procedures: Written comments may be submitted to
Bart Campbell. DENR. Division of Environmental Health, PO
Box 29534, Raleigh. NC 27626-0534.
CHAPTER 18 - ENVIRONMENTAL HEALTH
SUBCHAPTER 18A - SANITATION
SECTION .1600 - SANITATION OF RESIDENTIAL
CARE FACILITIES
.1611 WATER SUPPLY
(a) Water supplies shall meet the requirements in 1 5 A NCAC
1 8 A .1700. .1700; however wells shall be approved without
meeting the setback to building foundation requirements found
in 15A NCAC 18A .1720. if water sampling in accordance with
Paragraph (b) of this Rule does not indicate a health threat.
(b) At least once a year, samples of water shall be collected
by the Department and submitted to the North Carolina State
Laboratory of Public Health or other laboratory certified by the
Department to perform examinations for Nitrates and Coliform
bacteria. However If the well supply serv e s a family foster
hom e or a private r e sidence r e gulated by th e s e Rul e s and the
weM is located at l e ast 10 f ee t but less than 25 feet from a
building foundation, the well shall also be sampled for
p e sticid e s, nitrates, and bact e ria pesticides upon application for
licensure or approval. After the initial pesticide sample is
collected and analyzed, the well shall be sampled again for
pesticides following any treatment for structural pests.
(c) No backflow connections or cross connections with
unapproved supplies shall exist.
(d) Adequate hot water heating facilities shall be provided.
Hot and cold rurming water under pressure shall be provided to
food preparation areas and any other areas in which water is
required for cleaning.
History Note; Authoritv G.S. 95-225; 130A-5(3); 130A-230;
130A-235; 130A-236; 130A-248; 130A-257;
Eff. February 1, 1976;
Readopted Eff. December 5. 1977;
Amended Eff. July 1. 1994; September 1. 1990;
Temporary Amendment Eff. Januar\' 1^ 1999; May 5, 1998.
********************
Rule-making Agency: N.C. Commission for Health Senices
Rule Citation: 15A NCAC 18A . 1952. . 1953, .1954. . 1955
Effective Date: January 1. 1999
Findings Reviewed and approved by: Beecher R. Gray
Authority for the rule-making: G.S. 130A-335(e)(f); 130A-
335.1
Reason for Proposed Action: The 1998 "short" session of the
N.C. General Assembly ratified on August 19, 1998, and the
Governor on August 28, 1998, HB 1462 which requires the
Commission for Health Services to adopt temporary rules
governing effluent filters and access devices for septic tank
systems by December 1, 1998 and temporary rules to be
effective on January 1. 1999. <Ref Section 3. S.L 1998-126)
Comment Procedures: Written comments on amendments to
Sewage Rules (15A NCAC 18A .1900 et seq.) should be
submitted to Steve J. Steinbeck. On-Site Wastewater Section,
P.O. Box 29594, Raleigh, NC 27626-0594 or emailed to
Steve _steinbeck a.mail. enr state, nc. us.
CHAPTER 18 - ENVIRONMENTAL HEALTH
SUBCHAPTER 18A -SANITATION
SECTION .1900 - SEWAGE TREATMENT AND
DISPOSAL SYSTEMS
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979
«»
TEMP0R.4R Y R ULES
.1952 SEPTIC TANK, DOSING TANK AND LIFT
STATION DESIGN
(a) A septic tank or dosing tank shall be watertight,
structurally sound, and not subject to excessive corrosion or
decay. Septic tanks shall be of rwo-compartment design. The
inlet compartment of a two-compartment tank shall hold bet^Aeen
two-thirds and three-fourths of the total tank capacity. Septic
tanks shall have an approved effluent filter and access devices.
The effluent filter shall function without a bypass of unfiltered
wastewater, sludge or scum. The effluent filter case shall be
designed to function as a sanitar. tee with the inlet extending
down to betvseen 25 and 40 percent of the liquid depth. The
requirement(s) for an effluent filter and access devices shall
appK' to septic tanks for which a Construction Authorization is
issued on or after Januar\ J^ 1999. A properK designed dosing
siphon or pump shall be used for discharging sewage effluent
into nitrification lines when the total length of such lines exceeds
750 linear feet in a single system and as required for any
pressure-dosed SNStem. When the design daily flow from a
single system exceeds 3.000 gallons per day or when the total
length of nitrification lines exceeds 2.000 linear feet in a single
SNStem. alternating siphons or pumps shall be used which shall
discharge to separate nitrification fields. The dose volume from
pump or siphon s\ stems shall be of such design so as to fill the
nitrification lines irom 66 percent to 75 percent of their capacity
at each discharge except as required for low-pressure
distribution s>stems. The discharge rate from dosing s\'stems
shall be designed to maximize the distribution of the effluent
throughout the nitrification field. Septic tanks installed where
the top will be deeper than 50 six inches below the finished
grade shall have an access manhol e , manhole over each
compartment with cover, extending to within six inches of the
finished grade, having a minimum opening adequate to
accommodate the installation or removal of the septic tank Mr
lid, septage removal, and maintenance of the effluent filter.
When the top of the septic tank or access manhole is below the
finished grade, the location of each manhole shall be visibly
marked at finished grade. Any SNStem serving a design unit
with a design sewage flow greater than 3.000 gallons per day
shall have access manhol es ov e r e ach compartm e nt and ov e r th e
outl e t sanitary t ee . — Th e acc ess manholes shaH that extend at
least to finished grade and be designed and maintained to
prevent surface water inflow. The manholes shall be sized to
allow proper inspection and maintenance. All dosing tanks shall
ha\e a properK functioning high-water alarm. The alarm shall
be audible and visible by system users and weatherproof if
installed outdoors. The alarm circuit shall be pro\ ided with a
manual disconnect in a watertight, corrosion-resistant outside
enclosure (NEMA 4X or equivalent) adjacent to the dosing tank.
(b) Minimum liquid capacities for septic tanks shall be in
accordance with the following:
(1)
Residential
Septic Tanks
(for
each individual
residence or
dw
elling unit):
Number of
Mmimum Liq
Liid
Equnalent Capacm
Bedrooms
Capacin.
Per Bedroom
3 or less
900 aallons
300 aallons
4
1.000 sallons
250 aallons
5
1.250 gallons
250 gallons
(2) Septic tanks for large residences, multiple dwelling
units, or places of business or public assembly shall
be in accordance with the following:
(A) The minimum liquid capacity of septic tanks
for places of business or places of public
assembly with a design sewage flow of 600
gallons per day or less shall be determined in
accordance with the following: V = 2Q; where
V is the liquid capacity of the septic tank and Q
is the design daily sewage flow.
(B) Individual residences with more than five
bedrooms. multiple-family residences,
individual septic tank systems serving two or
more residences, or any place of business or
public assembly where the design sewage flow
is greater than 600 gallons per day. but less
than 1 .500 gallons per day, the liquid capacity
of the septic tank shall be designed in
accordance with the following: V = 1.17Q +
500; where V is the liquid capacity of the
septic tank and Q is the design daily sewage
flow. The minimum liquid capacity of a septic
tank serving two or more residences shall be
1,500 gallons.
(C) Where the design sewage flow is between
1.500 gallons per day and 4.500 gallons per
day, the liquid capacity of the septic tank shall
be designed in accordance with the following:
V = 0.75O - 1,125; where V is the liquid
capacity of the septic tank and Q is the design
daily sewage flow.
(D) Where the design sewage flow exceeds 4,500
gallons per day. the septic tank shall be
designed in accordance with the following: V
= Q; where V is the liquid capacity of the
septic tank and Q is the design daily sewage
flow.
(E) The minimum liquid capacity requirements of
Subparagraph (b)(2) of this Rule shall be met
by use of a single two-compartment septic tank
or by two tanks installed in series, provided the
first tank is constructed without a baffle wall
and contains at least two-thirds of the total
required liquid capacity.
(3) The minimum capacity of any septic tank shall be 750
gallons,
(c) The following are minimum standards of design and
construction of pump tanks and pump dosing systems:
(1) The liquid capacity of a pump lank shall be
considered as the entire internal volume with no
additional requirement for freeboard. Pump tanks
shall have a minimum liquid capacity in accordance
with the following:
(A) Pump tanks for systems with nitrification fields
installed in Soil Group 1. II, or III soils, as
defined in these Rules, shall have a minimum
liquid capacity equal to tyvo-thirds of the
required septic tank liquid capacity.
(B) Pump tanks for systems installed in Group IV
980
NORTH CAROLINA REGISTER
December 15, 1998
13:12
TEMPORAR Y RULES
soils shall have a minimum liquid capacity
equal to the required septic tank liquid
capacity.
(C) The minimum liquid capacity of any pump tank
shall be 750 gallons.
(D) An alternate method to determine minimum
liquid capacity of a pump tank shall be to
provide for the minimum pump submergence
requirement (Subparagraph (c)(5) of this Rule),
the minimum dose volume requirement
(Paragraph (a) of this Rule), and the minimum
emergency storage capacity requirement. The
emergency storage capacity requirement is
determined based on the type of facility served,
the classification of surface waters which
would be impacted by a pump tank failure, and
the availability of standby power devices and
emergency maintenance personnel. The
emergency storage capacity shall be the
freeboard space in the pump tank above the
high-water alarm activation level plus the
available freeboard space in previous tankage
and in the collection system below the lowest
ground elevation between the pump tank and
the lowest connected building drain invert.
The minimum emergency storage capacity for
residential systems and other systems in
full-time use on sites draining into WS-I,
WS-Il. WS-IIl, SA, SB, and B waters shall be
24 hours, without standby power, or 1 2 hours
with standby power manually activated, or four
hours with standby power automatically
activated or with a high-water alarm
automatically contacting a 24-hour
maintenance service. The minimum emergency
storage capacity for systems not in full-time
use and for all systems at sites draining into all
other surface waters shall be 12 hours without
standby power, or eight hours with standby
power manually activated, or four hours with
standby power automatically activated or with
a high-water alarm automatically contacting a
24-hour maintenance service.
(E) Notwithstanding Paragraphs (c)(1) (A)-(D),
other criteria for pump tank capacity may be
approved by the local health department and
the State for raw sewage lift stations, pressure
sewer systems, and systems with design flows
exceeding 3,000 gallons per day.
(2) The effluent pump shall be capable of handling at
least one-half inch solids and designed to meet the
discharge rate and total dynamic head requirements of
the effluent distribution system. The pump shall be
listed by Underwriter's Laboratory or an equivalent
third party electrical testing and listing agency, unless
the proposed pump model is specified by a registered
professional engineer.
(3) Pump discharge piping shall be of Schedule 40 PVC
or stronger material and adequately secured. Fittings
and valves shall be of compatible corrosion-resistant
material. A threaded union, flange, or similar
disconnect device shall be provided in each pump
discharge line. All submersible pumps shall be
provided with a corrosion-resistant rope or chain
attached to each pump enabling pump removal from
the ground surface without requiring dewatering or
entrance into the tank. Valves shall also be readily
accessible from the ground surface.
(4) Antisiphon holes (three-sixteenth inch) shall be
provided when the discharge or invert elevation of the
distribution system is below the high-water alarm
elevation in the pump tank, or in accordance with
pump manufacturer's specifications. Check valves
shall be provided when the volume of the supply line
is greater than 25 percent of the dosing volume, or in
accordance with pump manufacturer's specifications.
When provided, the antisiphon hole shall be located
between the pump and the check valve.
(5) Sealed mercury control floats or similar devices
designed for detecting liquid levels in septic tank
effluent shall be provided to control pump cycles. A
separate level sensing device shall be provided to
activate the high-water alarm. Pump-off level shall be
set to keep the pump submerged at all times or in
accordance with the manufacturer's specifications. A
minimum of 12 inches of effluent shall be maintained
in the bottom of the pump tank. The high-water alarm
float shall be set to activate within six inches of the
pump-on level. The lag pump float switch, where
provided, shall be located at or above the high-water
alarm activation level.
(6) Pump and control circuits shall be provided with
manual circuit disconnects within a watertight,
corrosion-resistant, outside enclosure (NEMA 4X or
equivalent) adjacent to the pump tank, securely
mounted at least 12 inches above the fmished grade.
The pump(s) shall be manually operable without
requiring the use of special tools or entrance into the
tank for testing purposes. Conductors shall be
conveyed to the disconnect enclosure through
waterproof, gasproof, and corrosion-resistant
conduits, with no splices or junction boxes provided
inside the tank. Wire grips, duct seal, or other
suitable material shall be used to seal around wire and
wire conduit openings inside the pump tank and
disconnect enclosure.
(7) For systems requiring duplex and multiplex pumps, a
confrol panel shall be provided which shall include
short-circuit protection for each pump and for the
control system, independent disconnects, automatic
pump sequencer, hand-off-automatic (H-O-A)
switches, run lights, and elapsed time counters for
each pump. Alarm circuits shall be supplied ahead of
any pump overload or short circuit protective devices.
The control panel must be in a watertight,
corrosion-resistant enclosure (NEMA 4X or
13:12
NORTH CAROLINA REGISTER
December 15, 1998
981
TEMPORAR Y R ULES
equivalent) unless installed within a weathertight
building. The panel shall be protected from intense
solar heating.
(8) Dual and multiple fields shall be independently dosed
by separate pumps which shall automatically alternate.
The supply lines shall be "H" connected to permit
manual alternation between fields dosed by each
pump. "H" connection valving shall be readily
accessible from the ground surface, either from the
pump tank access manhole or in a separate valve
chamber outside the pump tank. Other equivalent
methods of dosing dual or multiple fields may be
approved by the State.
(9) The pump tank shall have a properly functioning
high-water alarm. The alarm circuit shall be supplied
ahead of any pump overload and short circuit
protective devices. The alarm shall be audible and
visible by system users and weatherproof if installed
outdoors in an enclosure (NEMA 4X or equivalent).
(d) Siphons and siphon dosing tanks may be used when at
least two feet of elevation drop can be maintained between the
siphon outlet invert and the inlet invert in the nitrification field
distribution system.
( 1 ) Siphon dosing tanks shall be designed in accordance
with the minimum dose requirements in this Rule and
shall meet the construction requirements of this
Section. The siphon dose tank shall provide at least
12 inches of freeboard, and the inlet pipe shall be at
least three inches above the siphon trip level. The
high-water alarm shall be set to activate within two
inches of the siphon trip level.
(2) Siphon dosing tanks shall have a watertight access
opening over each siphon with a minimum diameter
of 24 inches and extending to finished grade and
designed to prevent surface water inflow.
(3) The slope and size of the siphon discharge line shall
be sufficient to handle the peak siphon discharge by
gravity' flow without the discharge line flowing full.
Vents for the discharge lines shall be located outside
of the dosing tank or otherwise designed to not serve
as an overflow for the tank.
(4) All siphon parts shall be installed in accordance with
the manufacturer's specifications. All materials must
be corrosion-resistant, of cast iron, high density
plastic, fiberglass, stainless steel, or equal.
(5) Siphon dosing tanks shall have a properly functioning
high-water alarm that is audible and visible by system
users and weatherproof if installed outdoors in an
enclosure (NEMA 4X or equivalent).
(e) Raw sewage lift stations shall meet the construction
standards of this Section and all horizontal setback requirements
for sewage treatment and disposal systems in accordance with
Rule .1950(a) of this Section unless the station is a sealed,
watertight chamber, in which case the setback requirements for
collection sewers in Rule .1950(e) of this Section shall apply.
Sealed, watertight chambers shall be of a single, prefabricated
unit, such as fiberglass, with sealed top cover, and preformed
inlet and outlet pipe openings connected with solvent w e ll s .
welds. 0-ring seals, rubber boots, stainless steel straps, or
equivalent. Dual pumps shall be provided for stations serving
two or more buildings or for a facility with more than six water
closets. Pumps shall be listed by Underwriter's Laboratories or
an equivalent third party electrical testing and listing agency, and
shall be grinder pumps or solids-handling pumps capable of
handling at least three-inch spheres unless the station serves no
more than a single water closet, lavatory, and shower, in which
case two-inch solids handling pumps shall be acceptable.
Minimum pump capacity shall be 2.5 times the average daily
flow rate. The dosing volume shall be set so that the pump-off
time does not exceed 30 minutes, except for stations serving
single buildings, and pump run-time shall be from three to ten
minutes at average flow. Pump station emergency storage
capacity and total liquid capacity shall be determined in
accordance with Paragraph (c)(1)(D) of this Rule except for a
sealed, watertight chamber serving an individual building, in
which case a minimum storage capacity of eight hours shall be
required. All other applicable requirements for pump tanks and
pump dosing systems in accordance with Paragraph (c) of this
Rule shall also apply to raw sewage lift stations.
History Note: Authohtv G.S. 130A-335 (e), (f). and (fl> [2nd];
Eff.Julyl 1982:
Amended Eff. August 1. 1991: January 1. 1990:
Temporarx' Amendment Eff. Januar\' 1^ 1999.
.1953 PREFABRICATED SEPTIC TANKS AND
PUMP TANKS
When prefabricated concrete tanks or tanks of other material
are used, they shall be constructed in accordance with the plans
which have been approved by the State and shall comply with all
requirements of this Section. At least three complete sets of
plans and specifications for the initial design of the prefabricated
septic tank or subsequent changes and modifications shall be
submitted to the Department of Environm e nt, — H e alth,
Environment and Natural Resources, Division of Environm e ntal
H e alth, On-Site Wastewater Section, RO. Box 276 8 7, 29594,
Raleigh, North Carolina 27611 76 8 7. 24626-0594. Separate
plans and specifications for the design of each septic tank or
pump tank to be produced shall be submitted to the Division of
Environmental H e alth On-Site Wastewater Section for approval.
These plans and specifications shall show the design of the
septic tank in detail, including:
( 1 ) All pertinent dimensions:
(2) Reinforcement material and location;
(3) Material strength:
(4) Liquid depth:
(5) Joint Pipe penetration, joint material and method of
sealing:
(6) Access manhole and ri se r d e tail: riser, lid, and other
proposed appurtenances to the septic tank:
(7) Approved effluent fllter(s), filter support detail and
filter access detail: and
(8)ffl Other design features.
History Note: Authority G.S. 130A-335 (ej (f), and (fl) [2nd];
Eff. July 1. 1982:
982
NORTH CAROLINA REGISTER
December 15, 1998
13:12
TEMPO RAR Y RULES
Amended Effi January 1 , 1990:
Temporary Amendment Eff. January J^ 1999.
.1954 MINIMUM STANDARDS FOR PRECAST
REINFORCED CONCRETE TANKS
'i a) Thie following are minimum standards of design and
construction of precast reinforced concrete septic tanks:
(1) The minimum requirement for the liquid depth is 36
inches.
(2) A minimiun of nine inches freeboard is required, the
freeboard being the air space between the top of the
liquid and the bottom side of the lid or cap of the tank.
(3) The length of the septic tank shall be at least twice as
long as the width.
(4) There shall be three inlet openings in the tank, one on
the tank end and one on each sidewall of the inlet end
of the tank. The blockouts for these openings shall
leave a concrete thickness of not less than one inch in
the tank wall. The blockouts shall be made for a
minimum of four-inch pipe or a maximum of six-inch
pipe. The outlet pipe penetration of the tank shall be
through a resilient, watertight, sealed, non-corrosive
and flexible connective sleeve. The outlet pipe
penetration shall be precast to be compatible with the
connective sleeve. No blockouts or openings No pipe
penetration points or openings shall be permitted
below the tank liquid level.
(5) The inlet pipe in the tank shall be a straight pipe.
(6) The outlet shall be through an approved effluent filter
secured in place in an effluent Filter support case. The
effluent filter support case shall serve as a functioning
sanitary tee with the bottom inlet extending down
between 25 and 40 percent of the liquid depth, a
cast in plac e concr e t e — sanitary' t ee . — a pol>T < 'inyl
chlorid e (PVC) sanitary' t ee . or a poly e thyl e n e (PE)
sanitar> t e e. made of not l e ss than class 160 pip e or
e quival e nt fittings and pipe. Class 160 pip e shall hav e
a wall thiclmess of not less than 0.1 8 3 inches. The
cast in place concr e te sanitar\' toe shall hav e a
minimum thickness of not l o ss than tv i o inch e s. Th e
t ee s hall e xt e nd down on e fourth of th e liquid d e pth.
The tee approved effluent filter and support case shall
be furnished by the septic tank manufacturer The
invert of the outlet shall be at least two inches lower
in elevation than the invert of the inlet.
(7) Other equivalent methods of supporting the effluent
filter and for making the pipe penetrations shall be
approved by the On-Site Wastewater Section.
£8} In order to obtain approval of an effluent filter, the
filter manufacturer shall submit to the State the
following information with supporting
documentation:
(A) For each septic tank system that is designed to
treat 3000 gallons per day or less of sewage, a
written certification that the effluent filter is
designed, constructed, and performs in
compliance with North Carolina General
Statute 130A-335.1(a)(n(2)(3). and(4):
(B) Sizing as to capacity and wastewater strength
for all models of proposed filters to be
approved; and
(C) Specifications for application, installation,
operation, and maintenance.
(9)ffl All tanks shall be manufactured with a cast-in-place
partirion so that the tank contains two compartments.
The partition shall be located at a point not less than
two-thirds nor more than three-fourths the length of
the tank from the inlet end. The top of the partition
shall terminate two inches below the bottom side of
the tank top in order to leave space for air or gas
passage between compartments. The top and bottom
halves of the partition shall be cast in such manner as
to leave a water passage slot four inches high for the
full width of the tank. The partition (both halves)
shall be reinforced by the placing of six-inch by
six-inch No. 1 gage welded reinforcing wire. The
reinforcing wire shall be bent to form an angle of 90
degrees on the ends in order to form a leg not less
than four inches long. When the wire is placed in the
mold the four-inch legs should lay parallel with the
sidewall wire and adjacent to it. It is recognized that
there are other methods of constructing a partition or
two-compartment tank. Any method other than the
one described will be considered on an individual
basis for approval by the Division of Environm e ntal
H e alth. On-Site Wastewater Section. However, the
tank wall thickness must remain not less than two and
one-half inches thick throughout the tank except for
blockouts. the pipe penetrations.
(lO^ ffi Adequate access openings must be provided in the
tank top. Access shall be provided for cleaning or
rodding out of the inlet pipe, for cleaning or clearing
the air or gas passage space above the partition, an
e ntranc e for ins e rting th e suction hos e for tank
pumping, and for e ntrance of a p e rson if int e rnal
r e pairs ar e n ee d e d aft e r pumping, for pumping of
each compartment, and for the maintenance of the
effluent filter This shall be accomplished by properly
locating two manholes or access openings with each
having a minimum opening of 4^ 15 inches by 4* 15
inches or \1_ inches in diameter as the opening cuts the
plane of the bottom side of the top of the tank, tank
or other equidimensional opening with at least 225
square inches. The manhole covers shall be beveled
on all sides in such manner as to accommodate a
uniform load of 150 pounds per square foot without
damage to the cover or the top of the tank. If the top
of the tank is to be multislab construction, the slabs
over the inlet of the tank, partition, and outlet of the
tank must not weigh in excess of 1 50 pounds each.
Multislab construction allows for the elimination of
the manholes. Manhole covers, tank lids, access
opening covers, or slabs shall have a handle of steel or
other rot-resistant material equivalent in strength to a
No. 3 reinforcing rod (rebar).
NORTH CAROLINA REGISTER
December 15, 1998
983
mmmsmt
TEMPORAR Y R ULES
(ID ffi The concrete tank and tank lid shall be reinforced by
using a minimum reinforcing of six-inch by six-inch
No. 10 gage welded steel reinforcing wire in the top.
bottom ends, and sides of the tank. The reinforcing
wire shall be lapped at least six inches. Concrete
cover shall be required for all reinforcement.
Reinforcement shall be placed to maximize the
structural integrity of the tank. The tank tank, tank
lid, riser and riser cover shall be able to withstand a
uniform live loading of 150 pounds per square foot in
addition to all loads to which an underground taHk
tanks, riser, or riser cover is normally subjected, such
as the dead weight of the concrete and soil cover,
active soil pressure on tank walls, and the uplifting
force of the ground water. Additional reinforcement
shall be required when the loads on a concrete tank
tank, riser, or riser cover are exceeded by subjecting
it to vehicular traffic or when the top of the tank is
placed deeper than three feet below the finished
grade.
(12) fl-&) The top. bottom, ends, and sides of the tank must have
a minimum thickness of two and one-half inches.
(13K -14-) A minimum 28-day concrete compressive strength of
3.500 pounds per square inch shall be used in the
construction of the septic tank. tank, concrete access
riser and riser cover. The concrete shall achieve a
minimum compressive strength of 3.000 pounds per
square inch prior to removal of the tank from the
place of manufacture. It shall be the responsibility of
the manufacturer to certify that this condition has
been met prior to shipment. A septic tank shall be
subject to testing to ascertain the strength of the
concrete prior to its being approved for installation.
Recognized devices for testing the strength of
concrete include a properly calibrated Schmidt
Rebound Hammer or Windsor Probe Test.
Accelerated curing in the mold by use of propane gas
or other fuels is prohibited, except in accordance with
accepted methods and upon prior approval of the
State.
(14 X 12) After curing, tanks manufactured in two sections and
as required, concrete risers shall be joined and sealed
at the joint by using a mastic, bufyl rubber, or other
pliable sealant that is waterproof, corrosion-resistant,
and approved for use in septic tanks. The sealant
shall have a minimum size of one inch nominal
diameter or equivalent. Before sealing, the joint shall
be smooth, intact, and free of all deleterious
substances. Tank halves shall be properly aligned to
ensure a tight seal. The sealant shall be provided b>
the manufacturer.
(15X 4^ All tanks produced shall bear an imprint identifying
the manufacturer, the serial number assigned to the
manufacturer's plans and specifications approved b\
the State, and the liquid or working capacity of the
tanks. This imprint shall be located to the right of the
blockout made for the outlet pipe on the outlet end of
the tank. All tanks shall also be permanently marked
with the date of manufacture adjacent to the tank
imprint or on the top of the tank directly above the
imprint.
(16) Risers and access covers shall have a clear opening
sized to allow for maintenance and removal of
internal devices of the septic tank and shall not allow
accidental entry. The access cover and tank lid shall
be designed, constructed, and maintained to prevent
unauthorized access. Risers shall be sealed watertight
where they join the top of the septic tank, and
constructed to prevent water inflow through the lid or
cover.
(b) Pump tanks shall meet the construction requirements of
Paragraph (a) of this Rule with the following modifications.
(1 ) Tanks shall be cast with a single compartment, or, if
a partition is provided, the partition shall be cast to
contain a minimum of two four-inch diameter circular
openings, or equivalent, located no more than 12
inches above the tank bottom.
(2) There shall be no requirement as to tank length, width,
or shape, provided the tank satisfies all other
requirements of this Section.
(3) The invert of the inlet openings shall be located
within 12 inches of the tank top. No freeboard shall
be required in the pump tank.
(4) After joining, tanks manufactured in two sections
shall be plastered along the joint with hydraulic
cement, cement mortar, or other waterproofing
sealant. Other methods of waterproofing tanks may
be used as specifically approved in the plans and
specifications for the tank. Prior to backfilling, the
local health department shall make a finding that a
two section tank is watertight if a soil wetness
condition is present within five feet of the elevation of
the top of the tank.
(5) Tanks shall be vented and accessible for routine
maintenance. A watertight access manhole with
removable lid shall be provided over the pump with a
minimum diameter of 24 inches. The access manhole
shall e.xtend at least to six inches above finished grade
and be designed and maintained to prevent surface
water inflow. Larger or multiple manholes shall be
provided when two or more pumps are required.
Pumps shall be removable without requiring entrance
into the tank. Manhole lids and electrical controls
shall be secured against unauthorized access.
Manhole risers shall be joined to the tank top and
sealed in accordance with Paragraphs (a)(12) and
(b)(4) of this Rule.
(6) All pump tanks shall bear an imprint identifying the
manufacturer, pump tank serial number assigned by
the Division of Environmental Health, and the liquid
or working capacity of the tank. The imprint shall be
located to the left of the outlet blockout. All tanks
shall also be permanenth marked with the date of
manufacture adjacent to the tank imprint or on the top
of the tank directly above the imprint.
(c) Plans for prefabricated tanks, tanks, risers and riser
984
NORTH CAROLINA REGISTER
December 15, 1998
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TEMPORAR Y R ULES
covers, other than those approved under Paragraphs (a) or (b) of
this Rule for precast reinforc e d concr e t e tanks, shall be approved
on an individual basis as determined by the information
fiimished by the designer which indicates the tank tank, riser or
riser cover will provide equivalent effectiveness as those
designed in accordance with the provisions of Paragraphs (a)
and (b) of this Rule.
(d) Tanks other than approved prefabricated tanks shall be
constructed consistent with the provisions of this Rule except as
follows:
(i) Cast-in-place concrete septic and pump tanks shall
have a minimum wall thickness of six inches.
(2) Concrete block or brick masonry tanks shall have a
minimum wall thickness of at least six inches when
the design volume is less than 1,000 gallons and a
minimum wall thickness of at least eight inches when
the design volume is 1 ,000 gallons or more. All joints
between masonry units shall be mortared using
masonry cement mortar or equivalent. The joints shall
have a nominal thickness of three-eighths inch. All
concrete block masonry tanks shall have a minimum
wall reinforcement of number three reinforcing bars
on 20-inch centers, or equivalent. The maximum
allowable reinforcement spacing in either direction
shall be four feet. All block wall cores shall be filled
with concrete with a minimum compressive strength
of 3,000 pounds per square inch. All tanks
constructed of block or brick shall be plastered on the
inside with a 1 :3 mix (one part cement, three parts
sand) of Portland cement at least three-eighths inch
thick or the equivalent using other approved
waterproofing material.
(3) The bottom of the built-in-place tank shall be poured
concrete with a minimum thickness of four inches.
All built-in-place tanks shall be reinforced to satisfy
the structural strength requirements of Paragraph
(a)(9) of this Rule. Reinforcement shall be placed in
both directions throughout the entire tank, including
top, bottom, walls, and ends.
(e) Manufacturers of septic tanks, effluent filters, pump tanks,
risers, and riser locators shall comply with the General Statutes,
this Section, and Approval conditions. If the approved products
or materials are found to be in non-compliance, the Operation
Permit shall not be issued or shall be denied. The State shall
suspend or revoke the product approval upon a fmding that the
information submitted is falsified, the product has been
subsequently altered, or subsequent experience with the product
results in altered conclusions about its design or performance.
Suspension or revocation of the product approval shall not affect
systems previously installed pursuant to the approval.
History Note: Authority G.S. I30A-335 (e), (j), and (fl) [2nd];
Eff.Julyl. 1982;
Amended Eff. August 1, 1991; January 1, 1990;
Temporary Amendment Eff. January 1, 1999.
.1955 DESIGN CRITERIA FOR CONVENTIONAL
SEWAGE SYSTEMS
(a) Conventional septic tank systems shall utilize a septic tank
of approved construction with an approved effluent filter and
supp ort case, access devices, and design volume which provides
primary treatment of the sewage in accordance with the
provisions of these Rules. The effluent filter support case shall
be solvent welded to a PVC Schedule 40 outlet pipe with a
minimum diameter of three inches inserted through the outlet
connective sleeve creating a watertight and mechanically sound
joint and shall extend at least 24 inches beyond the tank outlet.
The filter and support case shall be installed and maintained in
accordance with the filter manufacturer's specifications. The
effluent filter shall be accessible without the operator entering
the septic tank and removable by hand. The effluent filter shall
be secured in the support case and located under the outlet
access opening or manhole. When the top of the septic tank or
access manhole is installed below finished grade, the location of
each access opening or manhole shall be visibly marked at
finished grade. The visible marker(s) shall be located over or
within a five foot radius of each access opening or manhole.
The markers) shall be identified as a septic tank locator. When
not placed over each access opening or manhole, the marker(s)
shall indicate location of tank access opening(s) or manhole(s).
The filtered eflfluent from the septic tank shall be conveyed to an
approved nitrification line where the soil provides for final
treatment and disposal of the sewage.
(b) Table 11 shall be used in determining the maximum
long-term acceptance rate for septic tank systems of
conventional trench design. The long-term acceptance rate shall
be based on the most hydraulically limiting naturally occurring
soil horizon within three feet of the ground surface or to a depth
of one foot below trench bottom, whichever is deeper.
TABLE II
SOIL GROUP
SOIL TEXTURE CLASSES
(USDA CLASSIFICATION)
LONG-TERM
ACCEPTANCE RATE
gpd/ft-
Sands
(With S or PS
structure and
clay mineralogy)
Sand
Loamy Sand
1.2-0.8
II
Coarse Loams
Sandy Loam
0.8-0.6
13:12
NORTH CAROLINA REGISTER
December 15, 1998
985
H
TEMPOIL4R Y RULES
IV
(With S or PS
Loam
structure and
clay mineralogy)
Fine Loams
Sandv Clav Loam
(With S or PS
Silt Loam
structure and
Clay Loam
clay mineralogy)
Siltv Clav Loam
Sih
Clavs
Sandy Clay
(With S or PS
Silt>- Clay
structure and
Clay
clay mineralogy)
0.6-0.3
0.4-0.
The long-term acceptance rate shall not exceed the mean rate for
the applicable soil group for food service facilities, meat
markets, and other places of business where accumulation of
grease can cause premature failure of a soil absorption system.
Long-term acceptance rates up to the maximum for the
applicable soil group may be permitted for facilities where data
from comparable facilities indicates that the grease and oil
content of the effluent will be less than 30 mg/l and the chemical
oxygen demand (COD) will be less than 500 mg/l.
(c) The design daily sewage flow shall be divided by the
long-term acceptance rate to determine the minimum area of
nitrification trench bottom. The total length of the nitrification
line shall be determined by dividing the required area of
nitrification trench bottom by the trench width, not to exceed 36
inches. Trenches shall be located not less than three times the
trench width on centers with a minimum spacing of five feet on
centers.
(d) The local health department may permit the use of a bed
system on sites where the soil texture can be classified into
either Soil Groups 1. 11. or 111. meeting the other requirements of
this Section, and onl> on lots which are limited by topograph),
space, or other site-planning considerations. In such cases, the
number of square feet of bottom area needed shall be increased
b\ 50 percent over what would be required for a trench system.
Nitrification lines shall be at least 1 8 inches from the side of the
bed and shall have lines on three-foot centers. When the design
daily flow exceeds 600 gallons per da\. bed systems shall not be
used.
(e) The pipe or tubing used between the septic tank and the
nitrification line shall be a minimum of three-inch nominal size
Schedule 40 polyvinyl chloride (PVC), polyethylene (PE), or
acrvlonitrile-butadiene-styrene (ABS) or equivalent with a
minimum fall of one-eighth inch per foot. Howe\er. three-inch
or greater nonperforated polyethylene (PE) corrugated tubing
ma}.- be substituted for Schedule 40 pipe bet\\een a distribution
device and the nitrification line if the following conditions are
met;
( 1 ) the trench has a minimum bottom width of one foot;
(2) the trench bed is compacted, smooth, and at a uniform
grade:
(3) the pipe is placed in the middle of the trench with a
minimum of three inches of clearance benveen the
pipe and the trench walls;
(4) washed stone or washed gravel envelope is placed in
the trench on both sides of the pipe and up to a point
at least two inches above the top of the pipe;
(5) a minimum of six inches of soil cover is placed and
compacted over the stone or gravel envelope; and
(6) earthen dams consisting of two feet of undisturbed or
compacted soil are placed at both ends of the trench
separating the trench from the distribution device and
the nitrification line.
All joints from the septic tank to the nitrification line shall be
watertight.
(f) When four or six-inch diameter corrugated plastic tubing
is used for nitrification lines, it shall be certified as complying
with ASTM F 405. Standard Specification for Corrugated
Polyethylene (PE) Tubing and Fittings, which is hereby adopted
by reference in accordance with G.S. 150B M(c). G.S. 150B-
21.6. The corrugated tubing shall have three rows of holes, each
hole between one-half inch and three-fourths inch in diameter,
and spaced longitudinally approximately four inches on centers.
The rows of holes may be equally spaced 120 degrees on centers
around the peripherv. or three rows may be located in the lower
portion of the tubing, the outside rows being approximately on
120-degree centers. The holes may be located in the same
corrugation or staggered in adjacent corrugations. Other types
of pipe may be used for nitrification lines provided the pipe
satisfies the requirements of this Section for hole size and
spacing and the pipe has a stiflriess equivalent to corrugated
polyethylene tubing (ASTM F-405) or stronger. The
nitrification line shall be located in the center of the nitrification
trench.
(g) Nitrification trenches shall be constructed as level as
possible but in no case shall the fall in a single trench bottom
exceed one-fourth inch in 1 feet as determined by an engineer's
level or equivalent. When surface slopes are greater than two
percent, the bottom of the nitrification trenches shall follow the
contour of the ground. An engineer's level or equivalent shall be
used for installation and inspection. The nitrification trench
shall not exceed a width of three feet and a depth of three feet.
except as approved b> the local health department.
(h) Rock used in soil absorption systems shall be clean,
washed gravel or crushed stone and graded or sized in
accordance with size numbers 3. 4. 5. 57. or 6 of ASTM D-448
(standard sizes of coarse aggregate) which is hereby adopted by
986
NORTH CAROLINA REGISTER
December 15, 1998
13:12
TEMPORAR Y RULES
reference in accordance with G.S. 150B H(c). G.S. 150B-21.6.
Copies may be inspected in, and copies obtained from the
Division of Environmental Health, P.O. Box 27687, Raleigh,
North Carolina 27611-7687. The rock shall be placed a
minimum of one foot deep with at least six inches below the pipe
and two inches over the pipe and distributed uniformly across
the trench bottom and over the pipe.
(i) The soil cover over the nitrification field shall be to a
depth of at least six inches. The finished grade over the
nitrification field shall be landscaped to prevent the ponding of
surface water and runoff of surface water shall be diverted away
fi-om the nitrification field. Soil cover above the original grade
shall be placed at a uniform depth over the entire nitrification
field, except as required to prevent the ponding of surface water,
and shall extend laterally five feet beyond the nitrification
trench. The soil cover shall be placed over a nitrification field
only after proper preparation of the original ground surface. The
type of soil cover and placement shall be approved by the local
health department.
(j) Effluent distribution devices, including distribution boxes,
fiow dividers, and flow diversion devices, shall be of sound
construction, watertight, not subject to excessive corrosion, and
of adequate design as approved by the local health department.
Effluent distribution devices shall be separated fi-om the septic
tank and nitrification lines by a minimum of two feet of
undisturbed or compacted soil and shall be placed level on a
solid foundation of soil or concrete to prevent differential
settlement of the device. The installer shall demonstrate that the
distribution devices perform as designed.
(k) Grease traps or grease interceptors shall be required at
food service facilities, meat markets, and other places of
business where the accumulation of grease can cause premature
failure of a soil absorption system. The following design criteria
shall be met:
( 1 ) The grease trap shall be plumbed to receive all wastes
associated with food handling and no toilet wastes;
(2) The grease trap liquid capacity shall be sufficient to
provide for at least five gallons of storage per meal
served per day, or at least two-thirds of the required
septic tank liquid capacity, or a capacity as determined
in accordance with the following:
LC = DxGLxSTxHRy2xLF
where
LC
D
GL
ST
HR
LF
= grease trap liquid capacity (gallons)
= number of seats in dining area
= gallons of wastewater per meal (1.5 single-service; 2.5 full service)
= storage capacit>' factor
= number of hours open
= loading factor
= 2.5
= (1.25 interstate highway
1 .0 other highways and recreational areas
0.8 secondary roads)
(3) Two or more chambers must be provided, with total
length-to-width ratio at least 2:1. Chamber opening
and outlet sanitary tee must extend dovMi at least 50
percent of the liquid depth.
(4) Access manholes, with a minimum diameter of 24
inches, shall be provided over each chamber and
sanitary tee. The access manholes shall extend at
least to finished grade and be designed and
maintained to prevent surface water infiltration. The
manholes shall also have readily removable covers to
facilitate insp e ction inspection, filter maintenance.
and grease removal.
(5) One tank or multiple tanks, in series, shall be
constructed in accordance with Rules .1952. .1953.
and .1954 of this Section, and the provisions of
Paragraphs (k)(3) and (k)(4) of this Rule.
(6) Where it has been demonstrated that specially
designed grease interceptors will provide improved
performance, the grease trap liquid capacity may be
reduced by up to 50 percent.
(1) Stepdowns or drop boxes may be used where it is
determined by the local health department that topography
prohibits the placement of nitrification trenches on level grade.
Stepdowns shall be constructed of two linear feet of undisturbed
soil and constructed to a height which fully utilizes the upstream
nitrification trench. Effluent shall be conveyed over the
stepdown through nonperforated pipe or tubing and backfilled
with compacted soil. Drop boxes shall be constructed so that the
invert of the inlet supply pipe is one inch above the invert of the
outlet supply pipe which is connected to the next lower drop
box. The top of the trench outlet laterals, which allow effluent
to move to the nitrification lines, shall be two inches below the
invert of the outlet supply line. Area taken up by stepdowns and
drop boxes shall not be included as part of the minimum area
required for nitrification trench bottoms.
(m) Nitrification trenches shall be installed with at least one
foot of naturally occurring soil between the trench bottom and
saprolite, rock, or any soil horizon unsuitable as to structure,
clay mineralogy or wemess. If the separation between the
bottom of the nitrification trench and any soil wetness condition
is less than 18 inches, and if more than six inches of this
separation consists of Group 1 soils, a low pressure pipe system
shall be required.
(n) If sewage effluent pumps are used, the applicable
requirements of Rule .1952 of this Section shall apply.
(o) Collection sewers shall be designed and constructed in
accordance with the following minimum criteria:
(1) Building drains and building sewers shall be in
accordance with the state plumbing code and
approved by the local building inspector.
13:12
NORTH CAROLINA REGISTER
December 15, 1998
987
TEMP0FL4RY RULES
(2) Pipe material shall be specified to comply with the
applicable ASTM standards, with methods of joining
and other special installation procedures specified
which are appropriate for the pipe to be used.
(3) Gravity sewers shall be designed to maintain scour
velocities of at least Uvo feet per second with the pipe
half full and a minimum of one foot per second at the
peak projected instantaneous flow rate. Force mains
shall be sized to obtain at least a two-foot per second
scour velocitv at the projected pump operating flow-
rate.
(4) Infiltration and exfiltration shall not exceed 100
gallons per day per inch diameter per mile of gravity
sewer pipe or 20 gallons per day per inch diameter per
mile of pressure pipe in force mains and suppK lines.
(5) Three-foot minimum cover shall be provided for all
sewers unless ferrous material pipe is specified.
Ferrous material pipe or other pipe with proper
bedding to develop design-supporting strength shall
be provided where sewers are subject to
traffic-bearing loads.
(6) Manholes shall be used for sewers at an\ bends,
junctions, and at least even, 425 feet along the sewer
lines. Drop manholes are required where the inlet to
outlet elevation difference exceeds 2.5 feet. Manhole
lids shall be watertight if located below the lOO-sear
flood elevation, within 100 feet of an\' public water
suppK source, or within 50 feet of an> pri\ate water
suppK source or any surface waters classified WS-I.
WS-li. WS-III. SA.'SB. orB.
(7) Cleanouts may be used instead of manholes for
four-inch and six-inch sewers ser\ing one or two
buildings or as otherwise allowed by the North
Carolina Plumbing Code. When used, cleanouts are
required at least even. 50 feet for four-inch sewers
and e\er\ 100 feet for six-inch sewers and at all
junctions and bends which exceed 45 degrees.
(8) Additional ventilation provisions ma\ be required for
collection sewers. Air relief valves shall be pro\ided
as needed for force mains.
(p) Alternating dual field nitrification sn stems ma> be utilized
where soils are limited b> high clogging potentials (Soil Groups
III and IV) and where the potential for malfunction and need for
immediate repair is required. Alternating dual nitrification fields
shall be designed with two complete nitrification fields, each
sized a minimum of 75 percent of the total area required for a
single field and separated b\ an efiluent fiow diversion \al\e.
The diversion \al\'e shall be constructed to resist 500 pounds
crushing strength. structuralK sound, and shall be resistant to
corrosion. Valves placed below ground level shall be pro\ ided
with a valve box and suitable valve stem so that thes may be
operated from the ground surface.
History Note: Authority G.S. 130.4-335 lei(fi. and (fl) [2nd]:
Eff. July 1. 1982:
Amended Eff. August 1. 1991: Janua>y 1. 1990: August 1. 1988:
February 1. 198~:
Temporary' Amendment Eff. Jamiar\- _f 1999.
*****A*AAt>c
Rule-making Agency:
Commission
Well Contractors Certification
Rule Citation: 15A NCAC 2" .0100. .0201, .0301. .0401.
.0410. .0420. .0430. .0440. .0501, .0510. .0520, .0601. .0701,
.0801. .0810. .0820, .0830, .0840, .0901, .0910, .0920, .0930
Effective Date: December 15. 1998
Findings Reviewed and Approved by: Julian Mann, III
Authority for the rule-making: G.S. 8^-94: 8''-98.2: 8^-98.4:
8-^-98.5: '8'-98.6: 8'-98.-: 8--98.8: 87-98.9: 8'-98.12: 143B-
300: 143B-301.il: 150B-3: 150B-38: 150B-40: 150B-43
Reason for Proposed Action: To establish certification
procedures and requirements for well contractor certification
pursuant to Session Lcnv 199'-358 and Senate Bill 1269
(Session Lom' 1998-129). The intent of these rules is to provide
the Hell Contractors Certification Commission with the
procedures and standards whereby it can determine the
qualifications of persons who engage in well contractor
activities. This rulemaking is also intended to provide well
contractors with a legal means of operating or continuing to
operate the business of well construction while at the same time
protecting consumers from persons who are not qualified to
construct wells. .4 water well is a major expense to landowners,
businesses, single family residences, and renters. Proper
construction of water wells is vital to securing a clean water
supply To this end providing a framework, by which well
contractors can demonstrate to the Commission that they have
the knowledge, skills, and abilities to construct wells in
accordance with the Well Construction Standards in Title 15.4
.\C.4C 2C ser\-es the public interest. Section 10 of Session Law
199~-0358 gi\'es the Well Contractors Certification Commission
the authority to adopt temporary rules. It is important to note
that Section 2 of Senate Bill 1269 (Session Law 1998-129)
extends the authority that the Well Contractors Certification
Commission has to conduct Temporary Rulemaking to Julv 1,
1999.
Comment Procedures: Comments, data, statements and other
information may be submitted in writing within 60 days of the
publication of this issue of the North Carolina Register Written
comments may be submitted to Da\-id Hance at ENR-DWQ-
Groundwater Section. P.O. Box 29 5" 8, Raleigh, North
Carolina. 2'626-05~8. {Phone: (919> '15-6189: Fax: (919)
"15-0588}. Comments will be accepted by the Commission
through February 15, 1998.
CHAPTER 27 - WELL CONTRACTOR
CERTIFICATION RULES
SECTION .0100 - DUTIES AND DEFINITIONS
988
NORTH CAROLINA REGISTER
December 15, 1998
13:12
TEMPORARY RULES
.0101 DUTIES OF A CERTIFIED WELL
CONTRACTOR
(a) A Certified well contractor must be present at all times
when well contractor activities are being conducted.
■ b) Every certified well contractor shall meet the continuing
education requirements of this Chapter for professional
development as a condition for certification renewal.
(c) A person who has satisfactorily met the requirements of
the Commission relating to well contractor activities is entitled
to recognition as a Certified Well Contractor certified to practice
as a well contractor in the State of North Carolina.
(1) Each well contractor shall be assigned a permanent
certification number and shall be issued a certificate
with that certification number Certification numbers
are not transferable and shall not be used by another
well contractor.
(2) The certification number shall be carried by the well
contractor on a card issued by the Coinmission at all
times when performing well contractor activities.
History Note: Authority G.S. 87-98.2; 87-98.4; 87-98.12;
143B-301.il;
Temporary Adoption Eff. December 15, 1998.
.0110 DEFINITIONS
(a) "Commission" means the Well Contractors Certification
Commission as established by the North Carolina General
Assembly.
(b) "College course" means a semester unit or quarter hour
unit of instruction given at a college or university, which is
relevant to well contractor activities.
(c) "Course/activity" means any course or activity with a clear
purpose and objective which will maintain, improve or expand
skills and knowledge relevant to the practice of well contractor
activities.
(d) "Department" means the Department of Environment and
Natural Resources.
(e) "Personally manage" means giving directions to the on-site
person who is personally supervising well contractor activities.
(0 "Personally supervise" means the on-site direction and
control of aU well contractor activities at any time those
activities are being conducted.
(g) "Professional development hour" or "PDH" means a
nominal contact hour of instruction or presentation that is the
basic unit of credit for all courses or activities related to
satisfying continuing education requirements.
(h) "Secretary" means the Secretary of the Department of
Environment and Natural Resources.
(i) "Sponsor" means an organization or individual approved by
the Commission, after having supplied information, on a form
prescribed and furnished by the Commission, with respect to the
organization's or individual's ability to provide instruction for
courses or activities related to well contractor activities.
(i) "Well contractor" means a person in trade or business who
undertakes to personally supervise or personally manage the
performance of a well contractor activity on the person's behalf
or for any person, firm or corporation.
(k) "Well contractor activity" means the construction.
installation, repair, alteration or abandonment of any well.
History Note: Authority G.S. 87-98.2; 87.98.12; 143B-
301.11;
Temporary Adoption Eff. December 15, 1998.
SECTION .0200 - WELL CONTRACTOR FEES
.0201 SCHEDULE OF CERTIFICATION FEES
(a) The following fees are required for well contractor
certification applications, renewals and temporary certifications:
tU Annual Fee: A fee of two hundred dollars ($200.00)
shall accompany each new a pplication for
certification or renewal of certification.
(2} Examination Fee: A fee of fifty dollars ($50.00) shall
accompany each request for examination. Where an
applicant requests an examination to be administered
at a time other than a regularly scheduled
examination, the fee will be one hundred dollars
($100.00).
(3) Temporary Certification: A fee of one hundred
dollars ($100.00) shall accompany each application
for temporary certification.
(b) Regular employees of a political subdivision or
governmental entity engaged in well contractor activity shall be
certified in accordance with this Chapter, but shall be exempt
from paying the annual fees required in this Chapter, for the well
contractor activity done for the political subdivision or
government entity.
History Note: A uthority G. S. 8 7-98. 9;
Temporary Adoption Eff. December 15, 1998.
SECTION .0300 - CERTIFICATION OF WELL
CONTRACTORS
.0301 APPLICATION REQUIREMENTS
FOR CERTIFICATION
(a) The Commission shall accept applications and renewal
requests for certification as a well contractor from any person
who is at least J_8 years of age, has knowledge of those rules
adopted by the Environmental Management Commission which
deal with the regulation of wells, has had not less than two years
experience in well contractor activities and whose application
meets all the following conditions:
(1) Each application shall be submitted on forms provided
by the Commission, which are designed for requesting
certification as a well contractor by way of
examination, certification without examination, or
temporary certification and must be properly and
accurately completed and submitted with an
appropriate fee to the office of the chairman of the
Commission.
(2) Each application has been determined as complete-
Incomplete applications and applications not
accompanied by an appropriate fee and attachments
cannot be processed and will be returned to the
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TEMPORAR Y RULES
applicant.
(3) Each application shall contain proof of experience as
provided in Paragraph (e) of this Rule.
(4) Each application shall include a request for the well
contractor examination or include documentation that
the applicant meets the requirement for certification
without examination as provided in Section .0500 of
this Chapter.
(5) Applicants who have intentionally supplied false
information must wait 1 2 months before resubmitting
an application for certification.
(bj The Commission shall not schedule an applicant to take
the required examination until his application has been reviewed
and the applicant has met all other conditions for certification.
The applicant must pass the examination within three attempts
or within a one year period of time after application submittal or
a new application shall be required. An applicant who has failed
the examination after three consecutive attempts shall be
required to obtain eight PDH units prior to resubmittal of an
application for certification.
(c) A certification shall not be issued until the applicant
successfully passes the required examination or meets the
requirements for certification without examination.
(d) A certification issued bv the Commission shall be valid in
every counts in the state.
(e) Satisfactory proof of two years experience jn well
contractor activities shall be demonstrated bv providing one of
the following:
(1) A Hst of at least 25 wells, together with their
locations, major use and approximate depth and
diameter, for which the applicant has supervised or
assisted jn the construction, repair or abandonment
process. This list shall provide the name and address
of the owner or owners of each well, and the
approximate date the construction of each well was
completed. A cop\ of the completion report for each
well shall accompany the list. Completion dates of
the 25 wells shall be distributed over a consecutive 24
month period.
(2) Letters from three persons in a business related to
well contractor activities attesting that the applicant
has been working jn a well contractor activity for a
minimum of 24 months.
(3) A letter from at least one currentK' certified well
contractor attesting that the applicant has been
working in a well contractor acti\ in for a minimum of
24 months.
(4) In lieu of the methods described in this Paragraph (e)
of this Rule, satisfactory proof of equivalent
experience may be presented to the Commission and
may be accepted on an individual basis.
History- Xote: Authority G.S. 8^-98.6: 8'-98.9: 143B-301. 11:
Temporary Adoption Eff. December 15. 1998.
SECTION .0400 - CERTIFICATION BY
EXAMINATION
.0401 SUBMITTAL AND PROCESSING OF
APPLICATIONS FOR EXAMINATIONS
(a) An application being filed for examination shall be
postmarked by the United States Postal Service, or otherwise
received bv the Commission, at least 30 days prior to the date
upon which the examination is scheduled to be administered and
the appropriate fee must accompany the application.
(b) Upon receipt of the application by the Commission, the
application will be reviewed by the designee(s) of the
Commission for eligibility to take the examination. The
applicant will be notified of their eligibility by letter and will be
advised of the date, time and place of the examination. A receipt
for the examination fee will accompany the letter. In cases
where the applicant is ineligible for examination, the applicant
will also be notified by letter and advised of the reason for
ineligibilits'. The examination fee will be refunded in the event
that the applicant is determined to be ineligible for the
examination, minus a 50 percent processing fee. Upon learning
of ineligibility, the applicant may' request a hearing before the
Commission at the next regularly scheduled meeting, relative to
the ineligibility, if the applicant so desires. Such requests must
be in yvriting and shall be submitted at least 30 days prior to the
next regularly scheduled meeting. Any applicant who
intentionalh supplies false information on the application for
certification for the purpose of gaining eligibility, will be
ineligible for the examination and wiU forfeit the examination
fee.
Histoty Note: Authority G.S. 87-98.6: 87-98.9 143B-301. 11:
Temporar\' .idoption Eff. December 15, 1998.
.0410 WELL CONTRACTOR EXAMINATIONS
(a) Well contractor examinations shall be yvritten.
comprehensive examinations that are standardized statewide.
The Commission may administer an examination orally on ^
individual basis upon a shoyving by the applicant of the existence
of exceptional circumstances. The examinations shall be
designed to determine the applicant's: knowledge of applicable
rules: ability to construct, repair and abandon a well: and the
ability to supervise, direct, manage and control the conttacting
activities of the yvell contracting business.
(b) A grade on the examination of 70 percent or more shall be
passing. Results of the examination shall be reported as either
passing or failing.
Histoty Note: Authority^ G.S. 87-98.6: 143B-301. 11;
Tempora/T .Adoption Eff. December 15, 1998.
0420 TIME AND PLACE OF EXAMINATION
The Commission or rts representatives shall conduct
examinations for certification at the time and place hereinafter
designated:
(1) An examination yvill be given at least tyvice a vear.
The date, time and place of examination yvill be
determined by the Commission. Information
regarding the date, time, and place will be made
available upon request. Announcements of the
examination yvill be distributed as deemed appropriate
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by the Commission. Each applicant filing for
examination will be notified in writing of the date,
time and place of the examination and the required
grade for passing the examination.
(2) Examinations may be given by the Commission at any
time or place:
(a) when a sufficient number of applications have
been filed to justify an examination, as
determined by the Commission; or
Co) upon a showing by aQ applicant of the
existence of exceptional circumstances.
(3) Each applicant filing for examination will be notified
in writing of the date, time and place of the
examination and the required grade for passing the
examination.
History Note: Authority G.S. 1438-301. 11: 87-98. 6:
Temporan' Adoption Eff. December 15. 1998.
.0430 CONDUCTING AND GRADING
EXAMINATIONS
(a) Examinations, prepared by members of the Commission
or its authorized representatives and approved by the
Commission, will be given only to those who, after filing a
proper application, have been determined to be eligible.
Examinations will be conducted and graded under the
supervision of a representative of the Commission, or its
authorized representatives. Assistance m conducting and
grading the examinations may be sought from members of the
Department and other appropriate persons with the approval of
the Commission. When each applicant receives his examination.
he will identify himself by way of his driver's license or other
form of photographic identification satisfactory to the proctor
and the identification number will be recorded on the face of the
examination paper.
(b) Representatives of the Commission or other authorized
representatives, who are supervising the examinations may take
appropriate action against applicants, including dismissal from
the examination, if cheating does occur. If the applicant holds
a certificate already, the Commission may revoke the
certification in accordance with G.S. 87-98.8 and ISA NCAC
27 . 0901 for cheating on an examination.
History Note: Authority G.S. 87-98.6: 87-98.8: 143B-301. 11:
Temporary- Adoption Eff. December 15. 1998.
{b} Under normal circumstances, neither the examination
grade nor the examination paper of any applicant will be made
available to anyone other than the members of the Commission
and those a pproved persons who assist in conducting and
grading the examinations. The examination papers will be held
by the Commission in a secure location for a period of six
months following notification to the applicant. Questions by the
applicant concerning the examination must be made in writing
to the Commission within that period. An applicant who fails to
pass an examination shall be entitled to and notified of the
privilege to review his examination in the presence of one or
more Commission members or its authorized representative in
Raleigh, or at another location approved by the Commission.
History Note: Authority G.S. 87-98.6: 87-98.8; 143B-301. 11;
Temporan' Adoption Eff. December 15, 1998.
SECTION .0500 - CERTIFICATION WITHOUT
EXAMINATION
.0501 CERTIFICATION BY LEGISLATIVE
EXEMPTION
(a) Unless an applicant is found to have engaged in an act that
would constitute grounds for disciplinary action, the
Commission shall issue a certificate without examination to any
person who since July i, 1992 has been actively and
continuously engaged in well contractor activity, and:
(1) Has been continuously registered with the
Department; or
(2) Employed by a firm or corporation that has been
continuously registered with the Department.
£bj To obtain certification under this Section, a person must
submit an application to the Commission and pay the annual fee
prior to January 1. 1999.
(c) A well contractor who is certified under this Section must
continuously maintain the certification in good standing in order
to remain certified.
(d) If a certificate issued under this Section is not renewed
under G.S. 87-98.7. is suspended, or is revoked, the well
contractor must apply for certification by examination in order
to be recertified.
History Note: Authority G.S. 87-98. 7; 143B-301. 11; Session
Laws 1997. c. 358. s. 9: '
Temporary Adoption Eff. December 15, 1998.
.0440 EXAMINATION RESULTS AND ISSUANCE
OF CERTIFICATES
(a) Within as short a period as feasible, after an examination.
the applicant will be informed, m writing only, by the
Commission or its authorized representatives as to the results of
his examination. If a passing score is made, such notification
constitutes certification by the Commission. After each
examination, a list of those certified shall be drawn up and made
a part of the permanent records of the Commission. Copies of
these lists will be provided to each Commission member. Upon
completion of the examination process, the applicant who passes
the examination will be issued a certificate.
.0510 RECIPROCAL WAIVER OF EXAMINATION
FOR CERTIFICATION
(a) The Commission may waive the examination requirement
of this Chapter for an applicant who js licensed or holds a
certification to practice well contractor activities in another State
which also provides for equivalent reciprocal waiver of
examination for licensing of certification to practice well
construction activities m that state to North Carolina certified
well contractors.
(b) The Commission may grant a waiver of the examination
requirement to an applicant who provides evidence satisfactory
to the Commission that the applicant:
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(1) Meets the requirements for Certification established
by the Commission under this Chapter; and
(2) Became hcensed or certified in the other State after
passing in that state an examination that js equal or
comparable to the examination for which the applicant
is seeking the waiver.
History Note: Authority G.S. 87-98.6: 87-98. 7; N3B-301. 11;
Temporary- Adoption Eff. December 15, 1998.
.0520 TEMPORARY CERTIFICATION
(a) Temporary certification ma\' be granted to any applicant
in accordance with the requirements of G.S. 87-98. 7(c).
(b) An applicant for temporary certification shall be required
to meet all the application criteria as outlined in 15A NCAC 27
.0301(a).
87-98.9. Notice shall be attempted by certified mail or personal
service.
History Note: Authority G.S. 87-98.6: 87-98.7: 143B-301.il:
Temporar\' Adoption Eff. December 15, 1998.
SECTION .0700 - TYPES OF CERTIFICATION
.0701 ESTABLISHMENT OF TYPES OF
CERTIFICATION
The Commission shall establish types of certification as
necessary to carry out the provisions of the Well Contractors
Certification Act.
History Note: Authorit}- G.S. 8^-98.5: 143B-301. 11:
Temporar\' Adoption Eff. December 15, 1998.
History Note: Authority G.S. 8:^-98. 6: 87-98. 7; 143B-301. 11;
Temporary .Adoption Eff. December 15, 1998.
SECTION .0800 - CONTINUING EDUCATION
REQUIREMENTS
SECTION .0600 - CERTIFICATION RENEWAL
.0601 CONDITIONS AND LIMITATIONS FOR
RENEWAL OF CERTIFICATIONS
(a) Certification issued pursuant to this Rule shall not be
transferable and shall expire on December 31 of each year
through the \ear 2000. Certification shall expire on June 30.
2001 and shall expire on June 30 of each year thereafter. A
certification may be renewed without examination for ensuing
years by making application to the Commission no later than the
expiration date of the certification and paying the renewal fee.
Receipt by the Commission of such application and the
appropriate fee(s) shall extend the validity of the current
certification until a new certification is received or the applicant
is notified by the Commission that formal administrative action
has been taken to suspend, revoke or deny renewal of the
certification.
(b) If a certification is not renewed in accordance with G.S.
87-98.9. the certification shall become void and mav be renewed
only in accordance with the requirements of G.S. 87-98. 7(b).
(c) No application for a renewal shall be granted if the
applicants certification is suspended or revoked until the period
for such suspension or revocation has expired.
(d) Individuals certified under this program shall immediateK
notify the Well Contractors Certification Commission in writing
of any change of their business or personal address.
(e) The Commission shall notify the well contractor of
nonpayment of the annual renewal fee in accordance with G.S.
.0801 REQUIREMENTS
Every certified well contractor is required to obtain eight
Professional Development Hours (PDH) units during the
renewal period. If a registrant exceeds the annual requirement
in any renewal period, a maximum of eight PDH units may be
carried forward into the subsequent renewal period. Selection
of courses and activities which meet the requirements of 15A
NCAC 27 .0820 of this Section is the responsibility of the
certified well contractor. Certified well contractors have the
option of selecting courses other than those offered by sponsors.
Post evaluation of courses offered by other than sponsors as
defined in 15A NCAC 27 .OllO(i) could result in non-
acceptance. PDH units mav be earned as follows:
(1) Completion of college courses.
(2) Completion of continuing education courses.
(3) Completion of correspondence, televised, videotaped,
audiotapes, and other short courses/tutorials.
(4) Presenting or attending seminars, in-house courses,
workshops, or professional or technical presentations
made at meetings, conventions or conferences.
(5) Teaching or instructing in Items ( 1 ). (2). or (3) of this
Rule.
(6) Authoring published papers, articles, or books.
(7) Active participation in professional or technical
societies.
History Note: Authority G.S. 8-'-98. 12: 143B-301. 11:
Temporary- .Adoption Eff. December 15, 1998.
.0810 UNITS
The conversion of other units of credit to PDH units is as follows:
(I) Completion of college courses 45 PDH
Completion of continuing education courses 30 PDH
Completion of correspondence, televised, videotaped, audiotapes, and other short courses/tutorials that
provides a completion certification 1 PDH
Presenting or attending seminars, in-house courses, workshops, or professional or technical presentations
made at meetings, conventions or conferences 1 PDH
i21
14}
15J
For teaching in Items ( 1) - (4) of this Rule. PDH credits are doubled. Teaching credits are valid for teaching a course or
992
NORTH CAROLINA REGISTER
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TEMPORAR Y RULES
£6}
seminar for the first time only. Teaching credit does not apply to fUll-time faculty, as defined by the institution where the
course is being taught.
Each published paper, article or book 10 PDH
Active participation in professional and technical society (Each Organization) 2 PDH
History Note: Authority G.S. 87-98.12; 1438-301.11;
Temporan' Adoption Eff. December 15. 1998.
.0820 DETERMINATION OF CREDIT
The Certification Commission has Fmal authority with respect
to a pproval of courses, sponsors, credit. PDH values for courses,
and other methods of earning credit. The types of credit that
will be considered by the Commission are as follows:
0) Credit for college or community college courses will
be based upon course credit established by the
college.
(2) Credit for seminars, workshops correspondence,
televised, videotaped, audiotapes, and other short
courses/tutorials will be based on one PDH unit for
each hour of attendance or contact time. Attendance
at programs presented at professional and technical
society meeting will earn PDH units for the actual
time of each program.
(3) Credit determination for published papers, articles and
books is the responsibility of the individual well
contractor.
(4) Credit for active participation in professional and
technical societies (limited to two PDH per
organization), requires that the well contractor attend
at least 50 percent of the regularly scheduled
meetings. PDH credits are not earned until the end of
each year of membership.
(5) Courses or activities offered by sponsors must contain
a clear purpose and objective and result in the
maintenance, improvement or expansion of skills and
knowledge related to practicing well contractor
activities and shall be deemed acceptable for meeting
continuing education requirements without scrutiny of
individual course content.
History Note: Authority G.S. 87-98.12; 143B-301.il;
Temporan' .Adoption Eff. December 15. 1998.
.0830 RECORDKEEPING
The responsibility of maintaining records to be used to support
credits claimed is the responsibility of the contractor. Records
required include, but are not limited to:
(1) A jog showing the t^^pe of activit\ claimed,
sponsoring organization. location. duration,
instructors or speakers name and P.H. credits earned;
Attendance verification records m the form of
completion certificates, or other documents
supporting evidence of attendance.
m
.0840 EXEMPTIONS
A well contractor may be exempt from the professional
development educational requirements for one of the following
reasons:
Well contractors, certified by way of examination or
reciprocity, shall be exempt from obtaining the
professional development hours prior to the first
renewal.
(2) A well contractor serving on temporary active duty in
the uniformed services of the United States for a
period of time exceeding 120 consecutive days jn a
year shall be exempt from obtaining the professional
development hours required during that year.
(3) Well contractors experiencing physical disability,
illness, or other extenuating circumstances as
reviewed and approved by the board may be exempt.
Supporting documentation must be furnished to the
board.
Histor}' Note: Authority G.S. 87-98. 12; 143B-301. 11;
Temporary Adoption Eff. December 15, 1998.
SECTION .0900 ■
.0901
PROCEDURES FOR DISCIPLINARY
ACTIONS
Histor}' Note: .Authority' G.S. 87-98.12; 1438-301.11 ;
Temporary Adoption Eff. December 15, 1998.
REVOCATION, RELINQUISHMENT OR
EXPIRATION OF CERTIFICATION
(a) The Commission may revoke or suspend the certification
of a well contractor in accordance with the provisions of G.S.
87-98.8 and G.S. 150B-3. Prior to the Commission's taking
action on a proposed revocation or suspension, the well
contractor shall be given an opportunity to submit a written
statement and present oral argument before the Commission at
a regularly scheduled meeting. Notice of the meeting shall be
delivered personally or by certified mail at least 1 5 days prior to
the meeting.
(b) Notice of the revocation or suspension shall be delivered
to the well contractor personally or by certified mail at least 20
days prior to the effective date of the revocation or suspension.
The notice shall contain the alleged facts or conduct upon which
the revocation or suspension is based and shall inform the well
contractor of the opportunity to contest the action under G.S.
150B before the effective date of revocation or suspension.
(c) Certification may be relinquished bv submission to the
Certification Commission of the original certificate and a
notarized statement of relinquishment.
(d) The Certification Commission may issue a written
reprimand to a well contractor in accordance with G.S. 87-98.8.
The reprimand shall be delivered personally or by certified mail.
A copy of the letter will be kept in the well contractor's file and
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TEMP01L4R Y RULES
a copy will be sent to the well contractor's employer of record.
The well contractor will be given the opportunity to gut a letter
of rebuttal into the File when a reprimand has been issued.
History Note: Authority G.S. 87-98.8: 143B-300: 150B-3:
150B-38: 150B-40: 150B-43:
Temporan' Adoption Eff. December 15, 1998.
.0910 RECERTIFICATION FOLLOWING
REVOCATION OR RELINQUISHMENT
(a) After revocation or relinquishment has been effective for
a period determine d b> the Commission, a person may apply in
writing for recertification by the Commission, including in his
petition any relevant facts concerning changes to conditions
under which revocation or relinquishment occurred. Such facts
shall show clearly that applicant will comply with the laws and
regulations.
(b) Within 120 days following receipt of an application for
recertification. the Commission will notify- the applicant bs letter
of its decision to deny or grant examination eligibilitN in
accordance with procedures set out in ISA NCAC 27 .0301.
Additional eligibility requirements including a show cause
conference may be imposed by the Commission as it deems
appropriate. Eligibility will only be granted if there is
substantial evidence that the conditions leadin g to the revocation
or relinquishment have been corrected.
(c) Recertification of a person as a well contractor shall onl\
occur by means of application and examination. The
examinations will not be waived. The applicant shall meet the
eligibility requirements set forth in 15A NCAC 27 .0301. The
Applicant shall not be eligible for temporary certification under
G.S. 87-98. 7(c).
(d) Upon notification of the Commission's decision to deny
eligibility, the applicant may appeal the decision pursuant to the
procedures contained in Article 3 A of G.S. I SOB.
Hi5tor\' Note: Authority G.S. 87.98.8: 143B-301. 11: 150B-3:
150B-43:
Temporary Adoption Eff. December ]_5^ 1998.
.0920 NOTIFICATION TO THE DEPARTMENT
The Commission shall notify the Department of all actions
taken in accordance with the requirements of this Section.
History Note: Authority G.S. 87.98.8: 143B-301. 11:
Temporary' Adoption Eff. December 15, 1998.
.0930 CIVIL PENALTIES
(a) Civil Penalties may be assessed by the Secretary against
any person who directly commits or causes a violation of the
provisions of the North Carolina Well Contractors Certification
Act or any rule adopted thereunder. Each day of a continuing
violation shall be a separate violation.
(b) The Commission shall make the final agency decision in
civil penalties assessed by the Secretary and shall exercise jts
quasi-judicial powers in accordance with G.S. ISOB.
History^ Note: Authority G.S 87-94: 87.98.4: 143B-301.il:
Temporan' Adoption Eff. December 15, 1998.
i
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NORTH CAROLINA REGISTER
December 15, 1998
13:12
RULES REVIEW COMMISSION
1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. December 17, 1998.
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule
before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by
Monday. December 14. 1998. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review
Commission at 919-733-2721 . Anyone wishing to address the Commission should notify the RRC staff and the agency at
least 24 hours prior to the meeting.
RULES REVIEW COMMISSION MEMBERS
Appointed by Senate
Teresa L. Smallwood, Vice Chairman
Jim Funderburke
Vemice B. Howard
Philip O. Redwine
David Twiddy
Appointed by House
Paul Powell, Chairman
Anita White, 2"" Vice Chairman
Mark Garside
Steve Rader
George Robinson
RULES REVIEW COMMISSION MEETING DATES
December 17, 1998
January 21, 1999
MEETING DATE: NOVEMBER 19, 1998
LOG OF FILINGS
RULES SUBMITTED: OCTOBER 20, 1998 THROUGH NOVEMBER 20, 1998
AGENCY/DIVISION RULE NAME
RULE CITATION
ACTION
DEPARTMENT OF ADMINISTRATION
Responsibility
1NCAC5A.0001
Amend
Forms: Procedures: Terms and Conditions
1 NCAC 5A .0008
Amend
Definitions
1NCAC5A.0012
Amend
Procedure
1 NCAC 5B .0101
Amend
Verbal Requests
1 NCAC 5B .0102
Amend
Types of Specifications
1 NCAC 5B .0201
Amend
Development of Specifications
1 NCAC 5B .0203
Amend
Submission for Adoption
1 NCAC 5B .0206
Amend
Qualified Products List
1 NCAC 5B .0208
Amend
Contracting Requirements
1 NCAC 5B .0301
Amend
Mailing Lists
1 NCAC 5B .0302
Repeal
Telegraph, Facsimile. & Telephone Offers
1 NCAC 5B .0303
Amend
Public Opening
1 NCAC 5B .0305
Amend
Late Offers, Modifications & Withdrawals
1 NCAC 5B .0306
Amend
Evaluation
1 NCAC 5B .0309
Amend
Notification of Award
1 NCAC 5B .0310
Amend
Solicitation Documents
1NCAC5B.0314
Amend
Division of Requirements
1 NCAC 5B .0315
Adopt
Advertisement Requirements
1 NCAC 5B .0316
Adopt
Mandatory Conferences/Site Visits
1 NCAC 5B .03 17
Adopt
General Delegation
1 NCAC 5B .0401
Repeal
Review by Board of Award
1 NCAC 5B .0402
Repeal
Division of Requirements
1 NCAC 5B .0403
Repeal
Negotiation
1 NCAC 5B .0503
Amend
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995
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R ULES RE VIE W COMMISSION
DEPARTMENT OF ADMINISTRATION
General Procedures
I NCAC 5B
.0601
Amend
Policy
I NCAC 5B
.0701
Amend
General Policy
1 NCAC 5B
.0801
Repeal
Procedure
I NCAC 5B
.0802
Repeal
Specifications
1 NCAC 5B
.0905
Amend
Report of Discrepancy
1 NCAC 5B
.0906
Amend
Use
1 NCAC 5B
.1101
Amend
Determining Factors
1 NCAC 5B
.1102
Amend
Special Items
1 NCAC 5B
.1105
Amend
Procedures
1 NCAC 5B
.1301
Repeal
Designation of Authorized Persons
1 NCAC 5B
.1303
Repeal
Policy
1 NCAC 5B
.1401
Amend
Approval and Documentation
I NCAC 5B
.1402
Amend
Confidentiality
1 NCAC 5B
.1501
Amend
Funds for Different Sources
1 NCAC 5B
.1505
Amend
Change in Corporate Structure
I NCAC 5B
.1507
Amend
Purchasing from or Through Agency
I NCAC 5B
.1509
Amend
Use of Purchasing Power
1 NCAC 5B
.1510
Amend
Antitrust Violations
1 NCAC 5B
.1511
Amend
Availability of Services
1 NCAC 5B
.1512
Amend
Cooperative Purchasing
1 NCAC 5B
.1513
Amend
Good Requiring Immediate Acceptance
1 NCAC 5B
.1517
Repeal
Board of Award
1 NCAC 5B
.1518
Amend
Protest Procedures
1 NCAC 5B
.1519
Amend
Default Proceedings: Debarment
I NCAC 5B
.1520
Amend
Faithful Performance
1 NCAC 5B
.1521
Amend
Exemptions
I NCAC 5B
.1601
Amend
Emergencies
1 NCAC 5B
.1602
Amend
Special Delegations
I NCAC 5B
.1603
Amend
General Delegations
1 NCAC 5B
.1604
Adopt
Compliance Reviews
1 NCAC 5B
.1605
Adopt
Record Maintenance
1 NCAC 5B
.1901
Amend
Files
1 NCAC 5B
.1903
Amend
Applications for Addition to Mailing List
1 NCAC 5B
.1906
Repeal
Term Contracts
1 NCAC 5B
.1907
Repeal
Canvassing Bid Files
1 NCAC 5B
.1909
Repeal
RATION/NC STATE COMMISSION OF INDIAN AFFAIRS
Organizational Assistance
1 NCAC 15
0202
Amend
Tribal Organizational Options
1 NCAC 15
0203
Amend
Petition for Recognition
1 NCAC 1 5
0204
Amend
Procedure for Recognition
1 NCAC 15
0207
Amend
Tribal Definition
1 NCAC 15
0208
Amend
Criteria for Recognition as a Tribe
1 NCAC 15
0209
Amend
Criteria for Recognition
1 NCAC 15
0210
Repeal
Recognition Requirement
1 NCAC 15
0211
Amend
Tribal Roll
1 NCAC 15
0214
Amend
RATION
State Clearinghouse
1 NCAC 25
0211
Amend
Environmental Bulletin
1 NCAC 25
0212
Amend
Environmental Polic> Act Advisory Comm
1 NCAC 25
0213
Amend
Minimum Criteria
1 NCAC 25
0301
Amend
Approval of Criteria
1 NCAC 25
0302
Amend
Revision of Criteria
1 NCAC 25
0303
Amend
Document under NEPA Deemed Adequate
1 NCAC 25
0402
Amend
Internal Review
1 NCAC 25
0504
Amend
Content of FONSI
1 NCAC 25
0505
Amend
996
NORTH CAROLINA REGISTER
December 15, 1998
13:12
RULES REVIEW COMMISSION
Review Process
Scoping
Format and Content
Review Process
DEPARTMENT OF ADMINISTRATION/STATE BUILDING COMMISSION
Evaluation Review
DEPARTMENT OF COMMERCE/COMMERCE FINANCE CENTER
Operator
Pre-Application Conference
Formal Application Procedures
Formal Application: Public Hearing
Project Certification From DENR
Manufacturing Wage Test
Jobs Saved or Generated Test
Background and Objectives
Definitions
Date of Receipt of Applications
Application Categories and Requirements
Review of Applications and Funding
Eligibility Requirements
Review: APP/Funding/Emergency Asst Projects
Eligibility Requirements
General
Required Findings
Formal Applications Procedures
Formal Application Procedures: Approval
Findings Requirements
General
Limitations
Reversion of Funds
Reporting Requirements
Designation of the Fifty Counties
Program Purpose and Objective
Definitions
Eligible Applicants
Funding Limitations
Projects not to be Considered for Funding
Pre-Application Conference
Applications
Discretionary Public Hearing
Formal Application Procedures: Approval
Formal Application Procedures: Denial
General
Criteria for Making Necessary Findings
Grant Agreement and Funding Approval
Method of Payment
Monitoring and Grant Close Out
1 NCAC 25 .0506
Amend
1 NCAC 25 .0602
Amend
1 NCAC 25 .0603
Amend
1 NCAC 25 .0605
Amend
1 NCAC 30F .0305
Amend
4 NCAC IE. 0104
Amend
4 NCAC IE. 0202
Amend
4 NCAC IE. 0205
Amend
4 NCAC IE. 0206
Amend
4 NCAC IE. 0207
Amend
4 NCAC IE. 0303
Amend
4 NCAC IE. 0306
Amend
4 NCAC 11.0101
Amend
4 NCAC 11.0102
Amend
4 NCAC 11 .0201
Amend
4 NCAC 11.0202
Amend
4 NCAC 11.0301
Amend
4 NCAC 11.0302
Amend
4 NCAC 11.0303
Repeal
4 NCAC 11.0304
Repeal
4 NCAC 11.0401
Repeal
4 NCAC 11.0402
Amend
4 NCAC 11 .0403
Amend
4 NCAC 11.0404
Amend
4 NCAC 11 .0405
Repeal
4 NCAC 11.0501
Amend
4 NCAC 11.0502
Amend
4 NCAC 11.0503
Amend
4 NCAC 11.0601
Repeal
4 NCAC 11.0701
Amend
4NCAC1K.0101
Amend
4 NCAC IK. 0102
Amend
4 NCAC IK. 0103
Amend
4 NCAC IK. 0104
Amend
4 NCAC IK. 0105
Amend
4 NCAC IK. 0202
Amend
4 NCAC IK. 0203
Amend
4 NCAC IK. 0204
Amend
4 NCAC IK. 0205
Amend
4 NCAC IK. 0206
Amend
4 NCAC IK. 0301
Amend
4 NCAC IK. 0302
Amend
4 NCAC IK. 0401
Amend
4 NCAC IK. 0402
Amend
4 NCAC IK .0404
Amend
DHHS/COMMISSION FOR MH/DD/SAS
Carolina Alternatives
lONCAC 14C.1151
Amend
DHHS/DIVISION OF MEDICAL ASSISTANCE
Rate Setting Method for Non-State Facilities
Purpose: Scope and Notice of Change
Program Definition
Enrollment
1 NCAC 26H .0304 Amend
10 NCAC 261 .0101 Amend
10NCAC26M.020] Amend
10 NCAC 26M .0202 Amend
13:12
NORTH CAROLINA REGISTER
December 15, 1998
997
sgga^amamm
^
RULES REVIEW COMMISSION
Access to Care
EnroUee and Subcontractor Appeals
DEPARTMENT OF INSURANCE
High Deductible Plans
Creditable Coverage
Guaranteed Issue for Eligible
DEPARTMENT OF LABOR
DEPARTMENT OF LABOR
DENR
Wage and Hour Office
Forms
Certification of Tips
Withholding of Wages
Authorization for Withholding of Wages
Vacation Pay
Bonuses and Commissions
Final Pay for Separated Employees
Form of Payment of Wages
Other Amounts Promised as Wages
Counting Employees
Conduct of Investigations
Supervision of Payment
dministrative Remedies
Litigation
Civil Penalties
Civil Penalty Assessment
Scope of Promised Wages
Notification at Time of Hiring
Notification During Employment
Meaning of Maintained in a Place Accessible
Methods of Providing Emp. with Itemized State
Workplace Retaliatory Discrimination Office
Forms
Definitions
Contents of Complaint
Filing of Complaints
Investigation
Interviews
Right-to-Sue Letters
Requests for Right-to-Sue Letters
Administrative Closings
Withdrawals
Right-to-Sue Dismissals
Right-to-Sue Closure
Settlements
Settlement
Litigation
Scope of Delegated Authority
Eligibility for Delegation of Authority
Delegation of Authority
Lapsed Delegations
Agents Serving as Contractors
Evaluation
Denial. Suspension and Revocation
10NCAC26M.0203
Amend
10NCAC26M.0305
Amend
IINCAC 12.0840
Adopt
11NCAC12.0841
Adopt
IINCAC 12.0842
Adopt
13NCAC 12.0101
Repeal
13NCAC 12.0104
Repeal
13NCAC 12.0303
Amend
13NCAC 12.0304
Amend
13NCAC 12.0305
Amend
I3NCAC 12,0306
Amend
13NCAC 12.0307
Amend
13 NCAC 12.0308
Adopt
13NCAC 12.0309
Adopt
13 NCAC 12.0310
Adopt
13 NCAC 12.0502
Repeal
13 NCAC 12.0602
Amend
13 NCAC 12.0603
Repeal
13 NCAC 12 .0604
Amend
13 NCAC 12.0605
Repeal
13 NCAC 12.0701
Amend
13 NCAC 12.0702
Amend
13 NCAC 12.0803
Adopt
13 NCAC 12.0804
Adopt
13 NCAC 12.0805
Adopt
13 NCAC 12.0806
Adopt
13 NCAC 12.0807
Adopt
13 NCAC 19.0101
Adopt
13 NCAC 19.0102
Adopt
13 NCAC 19.0201
Adopt
13 NCAC 19.0301
Adopt
13 NCAC 19.0302
Adopt
13 NCAC 19.0401
Adopt
13 NCAC 19.0402
Adopt
13 NCAC 19.0501
Adopt
13 NCAC 19.0502
Adopt
13 NCAC 19.0601
Adopt
13 NCAC 19.0602
Adopt
13 NCAC 19.0603
Adopt
13 NCAC 19.0604
Adopt
13 NCAC 19.0605
Adopt
13 NCAC 19.0701
Adopt
13 NCAC 19.0702
Adopt
15 NCAC 10. 0101
Adopt
15 NCAC 10.0102
Adopt
15 NCAC 10.0103
Adopt
15 NCAC 10.0104
Adopt
15 NCAC 10.0105
Adopt
15 NCAC 10.0106
Adopt
15 NCAC 10.0107
Adopt
998
NORTH CAROLINA REGISTER
December 15, 1998
13:12
RULES REVIEW COMMISSION
I
►
Re-Authorization
Appeals Procedures
DENR/ENVIRONMENTAL MANAGEMENT COMMISSION
Randleman Lake Water Supply Watershed
Wastewater Discharge Requirements
Protection and Maintenance of Reparian Areas
Stormwater Requirements
Cape Fear River Basin
DENR/SOIL AND WATER CONSERVATION COMMISSION
Cost Share Agreement
DENR/COASTAL RESOURCES COMMISSION
Specific Use Standards for Ocean Hazard Areas
Reserve Components
Reserve Use Requirements
DENRAVILDLIFE RESOURCES COMMISSION
Manner of Taking Inland Game Fish
Open Seasons: Creel and Size Limits
Special Device Fishing
Possession of Licenses
Dare County
DENR/DIVISION OF PARKS AND RECREATION
Use of Pyrotechnics in State Parks
DENR/COMMISSION FOR HEALTH SERVICES
Tagging
Public Display of Consumer Advisory
Modifications of the Adoption by Reference
Shellfish
15NCAC lO
.0108
Adopt
15NCAC lO
.0109
Adopt
15NCAC2B
.0248
Adopt
15NCAC2B
.0249
Adopt
15NCAC2B
.0250
Adopt
15NCAC2B
.0251
Adopt
15NCAC2B
.0311
Amend
15NCAC6E.0107
Amend
15NCAC7H.0308
Amend
15NCAC7O.0105
Amend
15NCAC7O.0202
Amend
15NCAC IOC .0302
Amend
15NCAC IOC .0305
Amend
15NCAC IOC .0404
Amend
15NCAC IOC .0405
Amend
15NCAC 10F.0310
Amend
15NCAC 12B.0901 Amend
15NCAC 18A.0425 Amend
15NCAC 18A.0432 Adopt
1 5 NC AC 18 A. 1202 Amend
15NCAC 18A.2612 Amend
REVENUE, DEPARTMENT OF
Approval Required for Substitute Forms
17NCAC 1C.0601
Adopt
REVENUE, DEPARTMENT OF
Inheritance and Estate Tax Return
Inheritance and Estate Tax Certificate
Inheritance and Estate Tax Waiver
Lock Box Release
Life Insurance: Accidental Death
Life Insurance: Mortgage Cancellation
Deductions: Mortgage Note
Valuation: Treasury Bonds
Valuation: Real Property
Federal Estate Tax
Mortgages against Real Property
REVENUE, DEPARTMENT OF
General License Provisions
Liquid Base Rate Illustrated
Products not used in manufacturing Process
Domestic Use Versus Commercial Use
Representative List
Federal Government
Application for Exemption Required
17NCAC3B
.0102
Repeal
17NCAC3B
.0103
Repeal
17NCAC3B
.0104
Repeal
17NCAC3B
.0106
Repeal
I7NCAC3B
.0108
Repeal
17NCAC3B
.0109
Repeal
I7NCAC3B
.0110
Repeal
17NCAC3B
.0111
Repeal
17NCAC3B
.0112
Repeal
17NCAC3B
.0113
Repeal
17NCAC3B
.0114
Repeal
17NCAC4D
.0204
Repeal
17NCAC4D
.0303
Repeal
17NCAC4D
.0305
Repeal
17NCAC4D
.0401
Repeal
17NCAC4D
.0402
Repeal
17NCAC4D
.0501
Repeal
17NCAC4D
.0505
Repeal
13:12
NORTH CAROLINA REGISTER
December 15, 1998
999
R ULES RE VIE W COMMISSION
Exempt Sales Records
Natural Products Determined
Only NC Taxpaid Indicia Allowed
Report by Distributor or Wholesaler
Report by Retailer
Report by Dealer on Trains
Discount for TimeK' Filing and Payment
Invoicing Requirements
Liabilit>' Under G.S. 105-1 13.51(a)
Liabilit> Under G.S. 105-1 13, 51(b)
REVENUE, DEPARTMENT OF
Extension of Filing Date
Investment in Subsidiary'
Business and Nonbusiness Income
Extension of Filing Date
Requirements when Corporation Ends
Withdrawals/Filing Requirement
REVENUE, DEPARTMENT OF
Items Requiring Special Attention
Common Carriers
Electronic Filing of Individual Income Tax Returns
Credit for Child and Dependent Care
Penalties for Failure to File
Fraud Penalt\'
Failure to File Informational Returns
Failure to File Penalties
Definition of Resident
Taxable Income of Residents
Tax Credits
Additional Withholding
REVENUE, DEPARTMENT OF
Returns
Sales b\ Manufacturers
Out-of-State Deliveries
Deliveries to Donees
Refunds to Nonprofit Entities
Governmental Entities not Eligible for Refunds
Sales to and by Hospitals
Sales to Tire Recappers
Food and Food Products
Seafoods
Florists' Deli\er> Associations
Telecommunications and Telegraph Companies
Exempt Orthopedic Appliances
Exempt Therapeutic Devices
Sales of Lubricants
MonthK Sales and Use Tax Report Form
QuarterK Sales and Use Tax Report Form
Sales and Use Tax Chart
Sales and Use Tax Chart: E-502A
Res. Application; Sales Use Tax
Notice of Proposed Tax Assessment Form
Application Renewal of Wholesale License Form
Notice of Delinq2uent Tax Report Form
Extension of Time for Filine Sales and Use Tax
17NCAC4D
.0506
Repeal
17NCAC4D
.0508
Repeal
17NCAC4D
.0610
Repeal
17NCAC4D
.0901
Repeal
I7NCAC4D
.0902
Repeal
17NCAC4D
.0903
Repeal
17NCAC4D
.0907
Repeal
17NCAC4D
.0908
Repeal
17NCAC4D
.1001
Repeal
17NCAC4D
.1003
Repeal
17NCAC5B
.0107
Amend
17NCAC5B
.1105
Amend
17NCAC5C
.0703
Amend
17NCAC5C
.2004
Amend
17NCAC5C
.2101
Amend
17NCAC5C
.2102
Repeal
17NCAC6B
.0104
Amend
17NCAC6B
.0110
Amend
17NCAC6B
.0118
Amend
17NCAC6B
.0606
Amend
17NCAC6B
.3203
Amend
I7NCAC6B
.3206
Amend
17NCAC6B
.3207
Repeal
17NCAC6B
.3719
Repeal
17NCAC6B
.3901
Amend
17NCAC6B
.3904
Amend
17NCAC6B
.4004
Amend
17NCAC6C
.0124
Amend
I7NCAC7B
.0104
Amend
17NCAC7B
.0206
Amend
17NCAC7B
.1301
Amend
17NCAC7B
.1303
Amend
17NCAC7B
.1602
Amend
17NCAC7B
.1704
Amend
17NCAC7B
.1801
Amend
17NCAC7B
.1905
Amend
17NCAC7B
.2201
Amend
17NCAC7B
.2212
Amend
17NCAC7B
.2802
Amend
17NCAC7B
.3201
Amend
17NCAC7B
.3301
Amend
17NCAC7B
.3302
Amend
17NCAC7B
.3702
Amend
17NCAC7B
.5401
Repeal
17NCAC7B
.5402
Repeal
17NCAC7B
.5403
Repeal
17NCAC7B
.5404
Repeal
17NCAC7B
.5405
Repeal
17NCAC7B
.5406
Repeal
17NCAC7B
.5408
Repeal
17NCAC7B
.5409
Repeal
17NCAC7B
.5410
Repeal
1000
NORTH CAROLINA REGISTER
December 15, 1998
13:12
RULES REVIEW COMMISSION
Certificate of Overpayment for 90 Days Form
Certificate of Overpayment Form
Receipt for Sales Tax Paid Form
Merchants Certificate of Registration Form
Schedule of County Sales and Use Taxes Form
Certificate of Authority Form
Bond Form
Numerical and Alphabetical List of Counties
Analysis of Tax by Leased Department Form
Analysis of State Sales and Use Tax by City Form
Sales Report for Fair Concessions Form
List of Post Offices in Taxing Counties Form
Notice of Amended Assessment Form
Manufacturers Certificate Form
Interstate Carrier Claim for Refund Form
Claim for Refund of Taxes Form: Churches
Claim for Refiand of Taxes Form: General Refund
Affidavit Form
Certificate of Resale Form
Commercial Fisherman's Certificate Form
Contractor's and Subcontractor's Certificate Form
Logging and Pulpwood Certificate Form
Purchaser's Affidavit of Export Form
Request for Sales/Use Tax Credit by Vendee Form
Sales and Use Tax Chart
Semimonthly Sales and Use Tax Report Form
Motor Vehicle Lease and Rental Report Form
Scrap Tire Disposal Tax Report Form
Monthly Sales and Use Tax Report Form
Notice/Taxpayers Filing 13 Reports a Year Form
Notice for Taxpayers Filing 26 Reports/Year Form
Extension of Time for Filing Sales and Use Tax
Special Sales and Use Tax Remittance Form
Notice of Tax Due Form
Notice of Tax Due Form
Notice to Newly Registered Wholesale Merchants
Notice to all Taxpayers Form
Utilities and Municipalities Sales Tax Report Form
Claim/Refund of County Sales & Use Taxes Form
Use Tax Report Form
Claim for Refund of State & County Sales/Use
Claim/Refund of White Goods Disposal Tax Form
REVENUE, DEPARTMENT OF
Carry Forward Credits
TRANSPORTATION, DEPARTMENT OF/RAIL DIVISION
Definition of Program
Eligible Costs
Ineligible Costs
Industry Certification
Application Evaluation
Procurements
Request for Reimbursement
Retainage
Repayment
Grant Agreement
I7NCAC7B
.5411
Repeal
I7NCAC7B
.5412
Repeal
17NCAC7B
.5414
Repeal
17NCAC7B
.5415
Repeal
I7NCAC7B
.5416
Repeal
17NCAC7B
.5417
Repeal
17NCAC7B
.5418
Repeal
I7NCAC7B
.5419
Repeal
17NCAC7B
.5420
Repeal
I7NCAC7B
.5421
Repeal
17NCAC7B
.5422
Repeal
I7NCAC7B
.5423
Repeal
17NCAC7B
.5424
Repeal
17NCAC7B
.5428
Repeal
17NCAC7B
.5429
Repeal
I7NCAC7B
.5430
Repeal
I7NCAC7B
.5431
Repeal
I7NCAC7B
.5432
Repeal
17NCAC7B
.5433
Repeal
17NCAC7B
.5434
Repeal
17NCAC7B
.5435
Repeal
17NCAC7B
.5438
Repeal
17NCAC7B
.5440
Repeal
I7NCAC7B
.5442
Repeal
I7NCAC7B
.5443
Repeal
17NCAC7B
.5444
Repeal
17NCAC7B
.5447
Repeal
I7NCAC7B
.5448
Repeal
I7NCAC7B
.5449
Repeal
I7NCAC7B
.5450
Repeal
I7NCAC7B
.5451
Repeal
I7NCAC7B
.5452
Repeal
17NCAC7B
.5453
Repeal
17NCAC7B
.5454
Repeal
17NCAC7B
.5455
Repeal
I7NCAC7B
.5456
Repeal
I7NCAC7B
.5457
Repeal
17NCAC7B
.5458
Repeal
I7NCAC7B
.5459
Repeal
I7NCAC7B
.5460
Repeal
I7NCAC7B
.5461
Repeal
17NCAC7B
.5463
Repeal
17NCAC9I .
0301
Repeal
19NCAC6B
.0401
Amend
19NCAC6B
.0404
Amend
I9NCAC6B
.0405
Amend
19NCAC6B
.0409
Amend
19NCAC6B
.0410
Amend
19NCAC6B
.0412
Repeal
19NCAC6B
.0413
Amend
I9NCAC6B
.0414
Repeal
I9NCAC6B
.0417
Amend
I9NCAC6B
.0418
Adopt
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1001
RULES REVIEW COMMISSION
STATE BOARDS/NC ACUPUNCTURE LICENSING BOARD
Qualifications for Licensure
Qualifications for Licensure thru Reciprocity
STATE BOARDS/NC STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANT
Definitions
Holding out to the Public
Direct Supervision Defined
New CPA Firm, Ongoing CPA Firm
Communication of Results of CPA Exam
Candidates' Accountancy Law Course Requirement
Reciprocal Certificates
Temporan. Permit
Modification of Discipline and New Cert.
Supervision of CPA Offices
Mailing Addresses of Certificate Holders
CPA Firm Registration
Registration and SQR Fees
Compliance with CPA Firm
Registration and Renewal
Supplemental Reports
Registration Requirements
Prohibition of Abuse
CPA Firms Deemed in Compliance
Selection of Engagement to be Reviewed
Notice to Clients
Certain Offices Excluded
Selection of a Review Team
Duty to Respond to Questions
Qualifications of Reviewers & Team Captains
Independence for a Reviewed CPA Firm
Conflict of Interest
Performing the Review
Confidentialit}'
Reporting Requirements
SQR Advisor>' Committee
Objections to SQR Advisory Committee
Review of Protest
Deceptive Conduct Prohibited
Reporting Convictions. Judgements
Forms of Practice
Objectivit}' and Conflicts of Interest
Advertising or Other Forms of Solicitation
CPA Firm Names
STATE BOARDS/NC MEDICAL BOARD
Fee
Definitions
Scope of Practice
Nurse Practitioner Approval
Requirements for Approval of Nurse Practitioner
Annual Renewal
Continuing Education
Inacti\e Status
Prescribing Authoritv'
Quality Assurance Standards
Method of Identification
Disciplinary Action
21NCAC 1 .0101
Amend
21 NCAC 1 .0105
Amend
EXAMINERS
21 NCAC 8A .0301
Amend
21 NCAC 8A .0308
Amend
21 NCAC 8A.0310
Amend
21 NCAC 8A 0315
Amend
21 NCAC 8F .0107
Amend
21 NCAC 8F .0504
Amend
21 NCAC 8H .0101
Amend
21 NCAC 8H .0102
Amend
21 NCAC 81 .0104
Amend
21 NCAC8J .0102
Repeal
21 NCAC 8J .0107
Amend
21 NCAC 8J .0108
Amend
21 NCAC 8J .01 10
Amend
21 NCAC 8J .01 11
Amend
21 NCAC 8K .0104
Amend
21 NCAC 8K .0105
Amend
21 NCAC 8M .0102
Amend
21 NCAC 8M .0103
Amend
21 NCAC 8M .0104
Amend
21 NCAC 8M .0201
Amend
21 NCAC 8M .0202
Amend
21 NCAC 8M .0204
Amend
21 NCAC 8M .0206
Amend
21 NCAC 8M .0207
Amend
21 NCAC 8M .0301
Amend
21 NCAC 8M .0302
Amend
21 NCAC 8M .0303
Amend
21 NCAC 8M .0304
Amend
21 NCAC 8M .0305
Amend
21 NCAC 8M .0306
Amend
21 NCAC 8M .0401
Amend
2 1 NCAC 8M .0402
Amend
21 NCAC 8M .0403
Amend
21 NCAC 8N .0202
Amend
21 NCAC 8N .0208
Amend
21 NCAC 8N .0302
Amend
21 NCAC 8N .0303
Amend
21 NCAC 8N .0306
Amend
21 NCAC8N .0307
Amend
21 NCAC 32F .0103
Adopt
21 NCAC 32M .0101
Adopt
21 NCAC 32M .0102
Adopt
21 NCAC 32M .0103
Adopt
21 NCAC 32M .0104
Adopt
21 NCAC 32M .0105
Adopt
21 NCAC 32M .0106
Adopt
21 NCAC 32M .0107
Adopt
21 NCAC 32M .0108
Adopt
21 NCAC 32M .0109
Adopt
21 NCAC32M.0110
Adopt
21 NCAC 32M .01 11
Adopt
1002
NORTH CAROLINA REGISTER
December 15, 1998
13:12
RULES REVIEW COMMISSION
Fees
21NCAC32M.01I2
Adopt
Practice During a Disaster
21 NCAC32M.0113
Adopt
Definitions
2INCAC32O.0101
Repeal
Qualifications for License
21NCAC32O.0102
Repeal
Temporary License
21NCAC32O.0103
Repeal
Inactive License Status
21 NCAC 320.0104
Repeal
Annual Registration
21 NCAC 320 .0105
Repeal
Continuing Medical Education
21 NCAC 320 .0106
Repeal
Exemption from License
21 NCAC 320 .0107
Repeal
Scope of Practice
21 NCAC 320 .0108
Repeal
Prescriptive Authority
21 NCAC 320 .0109
Repeal
Supervision of Physician Assistants
21 NCAC 320 .0110
Repeal
Supervising Physicians
21 NCAC 320 .01 11
Repeal
Notification of Intent to Practice
21 NCAC 320 .01 12
Repeal
Satellite Settings
21 NCAC 320 .01 13
Repeal
Exclusions of Limitations on Employment
21 NCAC 320 .01 14
Repeal
Assumption of Professional Liability
21 NCAC 320 .01 15
Repeal
Violations
21 NCAC 320 .01 16
Repeal
Disciplinary Authority
21 NCAC 320 .01 17
Repeal
Continuing Medical Education Required
21 NCAC 32R .0101
Adopt
Approved Categories of CME
21 NCAC 32R .0102
Adopt
Exceptions
21 NCAC 32R .0103
Adopt
Reporting
21 NCAC 32R .0104
Adopt
Definitions
21 NCAC 32S .0101
Adopt
Qualifications for License
21 NCAC 32S .0102
Adopt
Temporary License
21 NCAC 32S .0103
Adopt
Inactive License Status
21 NCAC 32S .0104
Adopt
Annual Registration
21 NCAC 32S .0105
Adopt
Continuing Medical Education
21 NCAC 32S .0106
Adopt
Exemption from License
21 NCAC 32S .0107
Adopt
Scope of Practice
21 NCAC 32S .0108
Adopt
Prescriptive Authority
21 NCAC 32S .0109
Adopt
Supervision of Physician Assistants
21 NCAC 32S .01 10
Adopt
Supervising Physicians
21 NCAC 32S .01 11
Adopt
Notification of Intent to Practice
21 NCAC 32S .01 12
Adopt
Violations
21 NCAC 32S .01 13
Adopt
Disciplinary Authority
21 NCAC 32S .0114
Adopt
Title and Practice Protection
21 NCAC 32S .01 15
Adopt
Identification Requirements
21 NCAC32S.0116
Adopt
Fees
21 NCAC 32S .0117
Adopt
Practice During a Disaster
21 NCAC 32S .01 18
Adopt
STATE BOARDS/NC BOARD OF NURSING
Approval and Practice Parameters
STATE BOARDS/NC BOARD OF PHARMACY
Definitions
Drug Distribution and Control
Requirement of Personal Appearance
Prescription: Receiving and Dispensing
Automated Dispensing or Drug Supply Devices
Pharmacist Work Conditions
21 NCAC 36 .0227
Amend
21 NCAC 46
.1317
Amend
21 NCAC 46
.1414
Amend
21 NCAC 46
.1606
Amend
21 NCAC 46
.1804
Amend
21 NCAC 46
.1814
Adopt
21 NCAC 46
.2506
Adopt
RULES REVIEW COMMISSION
November 19, 1998
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1003
RULES REVIEW COMMISSION
MINUTES
The Rules Review Commission met on November 19, 1998, in the Assembly Room of the Methodist Building, 1307 Glenwood
Avenue. Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell, David R. Twiddy, Jim R. Funderburk,
Anita A. White, Mark P. Garside, and George S. Robinson (by telephone).
Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster
(
The following people attended:
David Brown
Nancy Scott
Juanita Gaskill
Aaron Padgett
Jim Hall
RMFry
Dedra Alston
Dwight Lancaster
Shirley Bullard
Jerry Perkins
Ed Buchan
Marc Lodge
EUie Sprenkel
Shamese Ransome
Theresa Shackelford
Janice Fain
Anna Carter
Susan Randolph
Thomas Allen
T Reeder
Roberta Oeullette
Mel Black
Valerie Chaffin
McKinlev Wooten
Frank Crawley
W R Hoke
Denise Stanford
DENR/Child Day Care
Attorney General
DENR'Marine Fisheries
DENR/Radiation Protection
DENR/Child Day Care
DENR/Radiation Protection
DENR
DENR/Water Quality
DHHS
DENR/State Revolving Fund
DENR/DEH
DHHS
Insurance
DHHS/Social Services
Insurance
DHHS/Child Day Care
DHHS/Child Day Care
DHHS
DENR/Water Quality
DENR/Water Quality
NC Appraisal Board
NC Appraisal Board
Hunton & Williams
Attorney General
Attorney General
Electrical Contractors
NC Board of Pharmacy
APPROVAL OF MINUTES
The meeting was called to order at 10:05 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or
corrections concerning the minutes of the October 22, 1998 meeting. There being none, the minutes were approved.
FOLLOW-UP MATTERS
4NCAC 3B .0101, .0102, and .0103: COMMERCE/Banking Commission - No response was received from the agency on these
rules.
4 NCAC 3H .0002: COMMERCE/'Banking Commission - No response was received from the agency on this rule.
10 NCAC 3R .61 12: DHHSMedical Care Commission -No response was received from the agency on this rule.
12 NCAC 9B .0301 and .0603: JUSTICE/Criminal Justice Education & Training Standards Commission - The rewritten rule
submitted for .0301 was objected to by the Commission because (d) still requires instructors to meet any continuing education courses
"deemed necessary and appropriate by the Commission." The deletion of (b) was approved by the Commission. The rewritten rule
submitted for .0603 was approved by the Commission contingent upon receiving the technical change. The change was subsequently
received.
1004
NORTH CAROLINA REGISTER
December 15, 1998
13:12
RULES REVIEW COMMISSION
15A NCAC lOF .0301: DENRAVildlife Resources Commission - The rewritten rule submitted by the agency was approved by the
Commission.
15ANCAC 13B .1624: DENR/Commission for Health Services - The rewritten rule submitted by the agency was approved by the
Commission.
15A NCAC 16A .0101: DENR/Commission for Health Services - The repeal submitted by the agency was approved by the
Commission.
15A NCAC 18A .2522, .2537, .2804, .2808, .2827, and .2833: DENR/ Commission for Health Services - The rewritten rules
submitted by the agency were approved by the Commission with the exception of .2804 which was objected to by the Commission.
It is still imclear what sources of potentially hazardous food the day care centers are required to use and how they are to identify such
sources.
LOG OF FILINGS
Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions:
10 NCAC 3U .0305, and .2805: DHHS/Child Care Commission - The Commission objected to .0305 and .2805 due to ambiguity.
It is not clear how the compliance history ratings are determined.
10 NCAC 3U .1601: DHHS/Child Care Commission - The Commission objected to .1601 due to ambiguity. As written, .1601
appears to apply to all centers, but the section title implies that it only applies to programs seeking to be recognized as meeting
enhanced standards. It is not clear to whom the .1600 rules apply.
10 NCAC 3U .2806: DHHS/Child Care Commission - The Commission objected to .2806 due to ambiguity. In (b)(2), (c)(2), and
(d)(2), it is not clear what constitutes a "nationally recognized" accrediting organization.
10 NCAC 3U .2810: DHHS/Child Care Commission - The Commission objected to .2810 due to ambiguity. In (c), it is not clear
what standards the division will use in approving individuals to perform rating scale assessments.
10 NCAC 20C .0206: DHHS/Division of Vocational Rehabilitation Services - The Commission objected to this rule due to lack of
statutory authority and ambiguity. In (1) there is no authority for allowing the waiver provision without specific guidelines. "[G]ood
cause" is not specific. It is also unclear whether the unit manager may refuse to approve the waiver if "good cause" (once it is
specified) is shown. This may simply be a requirement that the waiver be in writing and that the unit manager be the decision maker.
10 NCAC 4 1 E, G, R, S and T: DHHS/Social Services Commission - These rules were withdrawn by the agency.
Commissioner White recused herself from the Department of Insurance rules.
1 1 NCAC 8 .0912 - rNSURANCE/Manufactured Housing Board: The Commission objected to this rule due to lack of statutory
authority. In (f)(4), there is no authority for including questions about federal laws and rules on the examination. There is also no
authority for the exemption in (I). G.S. 143-143.1 1(h) requires a person to pass an examination in order to obtain a license.
12 NCAC 7D .1201, and .1202: JUSTICE/NC Private Protective Services Board - The Commission objected to the .1200 rules due
to lack of statutory authority. There is no authority for setting requirements for instructors of instructors. G.S. 74C-13(h) and (1)
require trainers to be certified but there is no authority for those training them to be.
12 NCAC 7D .1301, .1302, .1303, .1304, .1305, .1306, and .1307: JUSTICE/NC Private Protective Services Board - The
Commission objected to each of the .1300 rules due to lack of statutory authority and also to .1301 and .1302 due to lack of necessity
and to .1304 and .1305 due to ambiguity. There is no authority cited for requiring continuing education for licensees. Conversely
G.S. 74C-9(f) allows renewal upon payment of the proper fee and evidence of insurance. In addition, .1301 is not necessary because
it has no requirements. In .1302, the term "accredited sponsor" is not used in the rules and thus does not need defining. In .1304(c)
and .1305, it is not clear what standards the Board will use in determining if a course will be sanctioned.
15A NCAC IN .0403: DENR - The Commission objected to this rule due to ambiguity. In (1), it is not clear what standards the
division will use in requiring business plan submittal.
13:12 NORTH CAROLINA REGISTER December IS, 1998 1005
mm i Biiiiiiiiiiir'Minmimmnn iiiiiii ii iiiiiiii i i n iiiiiiiiiiiiii i iif r i fl fn n i vii i MH »f ii i Ft i w ii FfiwrtHii T «m f HW ' MMii<<i»«i'tHji^^
RULES REVIEW COMMISSION
1 5 A NCAC IN .0604: DENR - The Commission objected to this rule due to ambiguity. The rule states that points may be awarded
in both Items (1) and (2), but Item (2) states that points may be awarded if not awarded in (1). This is contradictory and thus
ambiguous.
15A NCAC IN .0701 : DENR - The commission objected to this rule due to ambiguity. In (c)(4), it is not clear what standards the
division will use in setting capacity development requirements.
I5A NCAC IN .0703: DENR - The Commission objected to this rule due to ambiguity. In (1), it is not clear what standards the
receiving agency (Division of Environmental Health) will use in approving loan commitment decreases.
1 5 A NCAC 10: DENR - These rules were withdrawn by the agency.
15A NCAC 2D .1208: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity.
In (a)(3)(A)(ii), it is not clear what standards the Administrator will use in waiving requirements.
1 5A NCAC 3P .0202: DENR/Marine Fisheries Commission - The Commission objected to this rule due to ambiguity. It is imclear
what constitutes "undisputed facts" in the context of a request for a declaratory ruling in (b), (b)(1), (d), (f)(1), and (g)(3).
ISA NCAC 8G .0401, .0402, .0403. .0404, .0405, .0406. .0407, and .0409: DENRAVater Pollution Control Systems Operators
Certification Commission - The Commission objected to .0401 through .0409 due to lack of statutory authority and ambiguity. It is
unclear what standards the Commission will use for approving the training programs in (b)(1). If the standards are not in the rules
there is no authority to set those standards outside rulemaking. In .0409, it is also unclear what standards the Commission will use
in determining whether to require training. This appears to be a slight variation on the waiver theme, but that is not abundantly clear
to this reviewer.
15A NCAC 8G .0505 and .0802: DENRAVater Pollution Control Systems Operators Certification Commission - The Commission
objected to .0505 and .0802 due to ambiguity. In .0505(d) the first sentence seems to say that all scores are final and will not be
changed. The last sentence states that exams shall be regraded if an "error is found in the examination." The rule is not clear as to
what is going on. Does it mean that grades will not be changed if the error is that a correct answer was not properly credited but will
be changed if the error was in the question itself? In .0802 the rule is unclear about the delegation of authority; the roles of the
Commission, chairman, and advisory committee; and the appellate path to follow.
I5A NCAC 8G .0902: DENR/Water Pollution Control Systems Operators Certification Commission - The Commission objected
.0902 due to lack of statutorv' authority. There is no authority to set reporting requirements outside rulemaking as set out in (6).
I5A NCAC 8G .1001: DENR/'Water Pollution Control Systems Operators Certification Commission - This rule was withdrawn by
the agency.
I5A NCAC 8G .1102: DENR/Water Pollution Control Systems Operators Certification Commission -This rule was withdrawn by
the agencN.
21 NCAC 46 .1612: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authorit>'. There is no
authority cited for the late renewal fee. G.S. 1508-19(5) is not sufficient authorit\. Note that the agency did not attempt to
specifically characterize the late renewal fee as any of the five listed general fees allowed by 1508-19(5).
21 NCAC 46 .2306: NC 8oard of Pharmacy - The Commission objected to this rule due to lack of statutory authority. This rule does
not appear to be consistent with the statute. It seems to expand the universe of those to whom the prescription information is
available.
21 NCAC 46 .2502: NC Board of Pharmacy - The Commission objected to .2502 due to lack of statutop.' authority and ambiguit}'.
In (g) there appears to be an exception or waiver of the rule forbidding serving as pharmacist-manager at more than one pharmacy.
However there are no specific guidelines for the Board's consideration. Paragraphs (k) - (m) are ambiguous. Paragraph (1) especially
is not clear about what the Board shall or shall not do under the circumstances. These paragraphs should be reviewed and perhaps
rewritten to make clear what danger the Board is addressing; the solution it requires; and the need to be sure that the rules do not
conflict with, or mislead someone about the effect of. the conduct of a civil lawsuit in any action over the dispensing or delivery of
a product by a pharmacist.
21 NCAC 46 .2506: NC Board of Pharmac\' - This rule was withdrawn by the agency.
1006 NORTH CAROLINA REGISTER December 15, 1998 13:12
RULES REVIEW COMMISSION
21 NCAC 46 .2609: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority and ambiguity.
There does not appear to be any authority cited to allow the board to test whether such a supplier has "a working knowledge of the
services provided and how they relate to each patient's goals." The authority cited is limited to require these providers to deliver the
equipment in a certain manner. As long as that is done, i.e., the rules for dispensing or delivering this equipment are followed, then
the supplier's knowledge is irrelevant and beyond the scope of the board's authority to test. In the alternative, even if the board has
th?r authority to test such knowledge, what constitutes this "working knowledge" is vague and undefmed. In addition the Commission
is not sure about the necessity for this rule. The only authority cited for this rule refers to dispensing or delivering "devices" or
"medical equipment" including certain rehabilitation equipment. It is unclear to me whether this rule purports to regulate more than
the items mentioned in the definition of medical equipment. As long as it does not there is no problem with the authority. But then
it is unclear what the interplay is between this rule and the next one for your review covering all medical equipment. This latter
problem is probably easily addressed by adding a provision that this rule, and not .26 1 1 , covers the delivery of rehabilitation
equipment, or specifying what parts of .26 1 1 also apply. But imtil that is done, this rule is imclear to me.
21 NCAC 46 .261 1: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority and ambiguity.
This rule presents one of the same problems as the previous rule. There does not appear to be any authority cited to allow the board
to test whether such a supplier has "a working knowledge of the services provided and how they relate to each patient's goals." The
authority cited is limited to require these providers to deliver the equipment in a certain manner As long as that is done, i.e., the rules
for dispensing or delivering this equipment are followed, then the supplier's knowledge is irrelevant and beyond the scope of the
board's authority to test. In the alternative, even if the board has the authority to test such knowledge, what constitutes this "working
knowledge" is vague and undefmed.
21 NCAC 57A .0305: NC Appraisal Board - The Commission objected to this rule due to lack of statutory authority and necessity.
There is no authority to require people not to talk about the exam's contents. The exam would appear to be a public record and as
such available to the public. Even if it were not a public record it would seem that it would not have been the legislature's intent to
allow the agency to forbid this activity and thus is unnecessary. Finally, it certainly appears to be a first amendment violation,
although that is not a basis for objecting to it. However it would be a good reason for the agency to withdraw it. Note that the agency
has extremely broad authority to adopt rules concerning the qualifications of its licensees, but this is not a qualification rule. The
authority would lie in the legislature's broad grant of power to adopt rules "reasonably necessary to implement, administer, and
enforce the provisions of this Chapter..." (G.S. 93E-1-10) including the administration of exams (G.S. 93E-l-6(c)).
COMMISSION PROCEDURES AND OTHER MATTERS
The President Pro Tempore of the Senate has appointed two new Commissioners - John Arrowwood and Laura Devan. Teresa
Smallwood was reappointed. No appointments have been made by the Speaker. Elections will be postponed until the January
meeting.
The next meeting will be on December 17, 1998.
The meeting adjourned at 1 1 :55 a.m.
Respectfully submitted,
Sandy Webster
13:12 NORTH CAROLINA REGISTER December IS, 1998 1007
t mimiuuimmm\m\vmm»'wm m
CONTESTED CASE DECISIONS
1 his Section contains the full text of some of the more significant Administrative Lcr,\- Judge decisions along ^\-ith an index
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of
Administrative Hearings. (919) '33-2698. Also, the Contested Case Decisions are a\-ailable on the Internet at the follow ing
address: http: 'w-ww:state.nc.us'OAH''hearings/ decision caseindex.htm.
OFFICE OF ADMINISTRATIVE HEARINGS
Chief .Administrative Law Judge
JULIAN MANN, III
Senior Administrative Law Judge
FRED G. MORRISON JR.
ADMINISTRATIVE LAW JUDGES
Brenda B. Becton
Sammie Chess Jr.
Beecher R. Gray
Melissa Owens
Meg Scott Phipps
Robert Roose\elt Reilh Jr.
Dolores O. Smith
AGENO
ALCOHOLIC BEVERAGE CONTROL COMMISSION
Alcoholic Be\erage Control Commission v KenneUi Jerome
Alcoholic Beverage Control Commission \ Jesse Jacob Josner, Jr
Alcoholic Beverage Control Commission v Trade Oil Company. Inc
Alcoholic Be\ erage Control Commission \ Pantana Bobs. Inc
Alcoholic Be\ erage Control Comm \ Partnership T .A C & J's Shipwreck
Alcoholic Be\ erage Control Commission v .Axis Entertainmem
Sokha Huor Ramadneh v .Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v Delores W'ilhams .Alnaqib
.Alcoholic Beverage Control Commission \ .Axis Entertainment
.Alcoholic Beverage Control Commission v James .Aubrey Stephenson
.Alcoholic Beverage Control Commission \ Bndgette Dee Williams
.Alcoholic Be\ erage Control Commission \ Robert Lee. Inc
.Alcoholic Beverage Control Comm v Partnership. T/.A Vanely Pic Up *21
Tarus Jackson \ .Mcoholic Beverage Control Commission
Alcoholic Beverage Control Comm v Simple Elegance Restaurants. Inc
.Alcoholic Beverage Control Comm \ Daniel Hinton Green
.'\lcoholic Beverage Control Comm v Zaheer .Ahmad Bajw^
.Alton Ollivierra Perry \ .Alcoholic Beverage Control Commission
BOARD OF CONTR.\CTORS
Heritage Pointe Builders. Inc & Pamck Hannon v Bd of Contractors
CRIME CONTROL ANT) PLBLIC SAFETY
Loretta Battle v Crime Victims Compensation Commission
Cynthia .Austin v Crime Victims Compensation Commission
Marcella Skaggs v Crime Victims Compensation Commission
Talmadge E McHenr. \ Cnme Victims Compensation Commission
Linda Calduell Wiggins v Crime Victims Compensation Commission
Kenneth T Lytle v Crime Victims Compensation Commission
Shirley Henr\hand v Cnme Victims Compensation Commission
Brenda Jean Thomas \ Cnme Victims Compensation Commission
Tareyton L Johnson \ Cnme Victims Comf>ensation Commission
Mia Thompson-Clark \ Cnme Victims Compensation Commission
Godfrey .Akenaborv Cnme Victims Compensation Commission
Valine H Thompson v Cnme Victims Compensation Commission
Rufus K- Williams v. Department of Cnme Control &. Public Safers
CASE
D.ATE OF
PUBLISHED DECISION
NTMBER
ALJ
DECISION
REGISTER CITATION
97 .ABC 1205
Phipps
07/23/98
97 .ABC 1438
Phipps
06/19/98
98 .ABC 0033
ReilK
08/21, '98
98 .ABC 0293
Reilllv
09/17/98
13:11 NCR 933
98 .ABC 0296
Momson
08/19/98
98 .ABC 0357*'
Reillv
07/02/98
98 .ABC 0382
Smith
06/30/98
13:03 NCR 350
98 ABC 0392
Chess
07/30/98
98 .ABC 0401*'
Reillv
07/02/98
98 ABC 0494
Chess
09/01/98
98 .ABC 0501
Reillv
08/11/98
98 .ABC 05 18
Gra\
08/11/98
98 .ABC 07 14
Momson
10/09/98
98 .ABC 0768
Smith
07/13,'98
98 .ABC 0850
Phipps
10/26/98
98 ABC 0889
Momson
11, '06/98
98 ABC 0960
Owens
10/30/98
98 ABC 1298
Owens
11/23/98
97 LBC 0243
Phipps
08/17/98
97 CPS 0654
Gra\
08/10/98
97CPS 1499
Reillv
08/12/98
13:05 NCR 533
98 CPS 0065
Ouens
06/05/98
98 CPS 01 16
Gra\
06/24/98
98 CPS 0153
Chess
08/27/98
98 CPS 0176
Reilh
07/06/98
98 CPS 0263
Momson
08/11/98
98 CPS 0314
Momson
08/11/98
98 CPS 0327
Reilh
09/02/98
98 CPS 0349
Chess
05/14/98
98 CPS 0427
Owens
10/30/98
13:12 NCR 1015
98 CPS 0674
Momson
11/18/98
98 CPS 0676
Momson
10/23/98
1008
NORTH CAROLINA REGISTER
December 15, 1998
13:12
CONTESTED CASE DECISIONS
AGENCY
Faye E Powell v Cnme Victims Compensation Commission
Hubert Lee Grant v Crime Victims Compensation Commission
Marv' Elizabeth Troutman v Cnme Victims Compensation Comm
Brenda H Alston v Cnme Victims Compensation Commission
Shirley P Chen v Crime Victims Compensation Commission
ENGINEERS AND SmVEYORS, BOARD OF EXAMINERS FOR
Thomas A- Truelove. Jr, PE v. Bd /Examiners/Engineers and Surveyors
ENVIRONMENT AND NATliRAL RESOIUCES
Ladane Williamson and Odell Decarol Williamson v DENR
Teresa Heflin v Department of Environment and Natural Resources
Ronald Prater v Department of Environment and Natural Resources
James F Smith v Department of Environment and Natural Resources
William Hickman v Department of Environment and Natural Resources
Hickory Alliance V- Department of Environment and Natural Resources
and
Godfrey Lumber Company. Inc.
John M Silvia v Department of Environment and Natural Resources
Godfrey Lumber Company. Inc. v. Dept./Environmem & Natural Resources
and
Hickory Alliance
Gregory B Jackson. Brenda R Jackson v Greene Cty HIth Dept . ENR
Robert G Goff. Sr v Department of Environment and Natural Resources
Scotland Water. Cedar Circle v Environment and Natural Resources
Womble & Company v Dept of Environment and Natural Resources
Enc Glenn Harrison v Environment and Natural Resources
Robert G Goff. Sr v Department of Environment and Natural Resources
Wilbur E Earp v Department of Environment and Natural Resources
Norell Bahrs v Carteret Cty Health Dept . DENR
Charles Davis v Department of Environment and Natural Resources
Division of Coastal Management
Preston Warren v Division of Coastal Management, Wilmington. NC
Division of Environmental Health
Gerald P Sigal v. DENR. Division of Environmental Health
Division of Environmental Management
Save Our Rivers. Inc . et al v Town of Highlands. EHNR. Env Mgmt .
William W Cobey. Jr . Secretary
US Dept. of the Interior Nat'l Park Svce v Environmental Mgmt Comm
Division of Marine Fisheries
Lady LaShanda Melvin Bryant v EFTNR. Division of Marine Fishenes
Gerald Moore, et al v DENR. Division of Marine Fishenes
Division of Solid Haste Management
Steve Aldridge. et al v DENR. Division of Solid Waste Management
Division of Hater Quality
Raymond L Martin v DENR. Division of Water Qualitv
Worsley Oil Companies, Inc \ DENR. DWQ. Groundwater Section
Silver Bullet. Inc v. DENR, Division of Water Quality
HEALTH AND HUMAN SER\ ICES
Stanley C Ochulo \ Off/Administrative Hearings, Mr R Marcus Lodge
Oliver C Johnson. Hazel T Johnson v Health and Human Services
Louise Streater v Health and Human Services
Richard E Lawrence. Rebecca A Laurence v Health and Human Services
John David Bnnson \ Department of Human Resources
Stephanie Wade \ Department of Health and Human Services
Caroly n L Freeman v Department of Human Resources
Otis L Mack. Jr v Office of Administrative Hearings
Chnstopher Germane. Lee Germano \ Department of Health
E Jean Woods v EDS - Medicaid
Cheryl Lynn Staton v Department of Health & Human Services
Mary Bamer v Administrative Hearing
Division of Child Dex'elopment
Dulatown Presbylenan Children's Ctr v DHHS, Child Development
Cassandra Myers v Division of Child Development
Dulatown Presbylenan Children Ctr v DHR. Child Development
Dora's Child Development Center v Mecklenburg Ct\ DSS. and DHR
CASE
DATE OF
PUBLISHED DECISION
NUMBER
AU
DECISION
REGISTER CITATION
98 CPS 0808
Owens
08/28/98
98 CPS 0839
Morrison
10/21/98
13:10NCR
853
98 CPS 0901
Smith
11/12/98
98 CPS 0952
Phipps
11/10/98
98 CPS 1015
Phipps
09/17/98
98 ELS 0O47
Mann
11/12/98
13:12 NCR
1035
96EHRI926
Gray
09/01/98
13:07 NCR
609
97 EHR 0409
Morrison
07/29/98
97EHR0451
Reillv
07/02/98
97 EHR 1365
Chess
07/17/98
97 EHR 1388
Gray
11/06/98
13:11 NCR
928
97 EHR 1607
Reilly
07/17/98
97 EHR 1646
Chess
06/03/98
97 EHR 1676
Reilly
07/17/98
98 EHR 0042
Reilly
07/02/98
98 EHR 0072*=
Gray
06/25/98
98 EHR 0236
Smith
06/09/98
98 EHR 0345
Chess
11/05/98
98 EHR 0373
Reilly
08/28/98
98 EHR 0448'-
Gray
06/25/98
98 EHR 0606
Smith
10/21/98
98 EHR 0884
Owens
11/02/98
98 EHR 0890
Owens
11/09/98
98 EHR 0177
Phipps
10/05/98
98 EHR 0051
Smith
10/02/98
91 EHR 0377
Gray
07/30/98
98 EHR 0410
Smith
08/20/98
13:06 NCR
578
97 EHR 1459
Gray
07/20/98
98 EHR 0322
Owens
10/08/98
13:09 NCR
797
98 EHR 0665
Chess
09/09/98
13:07 NCR
617
98 EHR 0590
Gray
09/21/98
98 EHR 0735
Chess
08/24/98
98 EHR 0931
Chess
08/20/98
98 DHR 0021
Reillv
06/24/98
98 DHR 0090
Gray
07/08/98
98 DHR 0196
Gray
06/03/98
98 DHR 0209
Phipps
07/15/98
98 DHR 0369
Owens
08/1 7/98
98 DHR 0666
Reilly
08/19/98
98 DHR 0721
Gray
08/05/98
98 DHR 0729
Phipps
09/09/98
98 DHR 0780
Owens
07/28/98
98 DHR 1118
Gray
10/26/98
98 DHR 1259
Smith
11/30/98
98 DHR 1287
Chess
11/19/98
98 DHR 0654
Gray
08/06/98
98 DHR 0948
Owens
09/03/98
98 DHR 1112
Morrison
10/16/98
98 DHR 1 1 84
Phipps
09/25/98
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1009
BnmmyBiii i iMiiiDiHiiiHMii i i i jaM
CONTESTED CASE DECISIONS
AGENO
CASE
NLnVlBER
ALJ
DATE OF
DECISION
Pl^BLISHED DECISION
REGISTER CITATION
Division of Facility Services
Pearlie W Lawson v DHHS, Facility Svcs . Health Care Personnel Reg
Annie K Morgan v Health & Human Services , Facility Services
Mooresville Hospital Mgmt Associates, Inc d/b/a Lake Norman Regional
Medical Center \ DHR. Facility' Services, Certificate of Need Section
and
Autumn Corporation and McKinley V Jumey
Warren Moore & Catherine Moore v DHR. Div of Facility Services
Constellation Health Services. Inc and Constellation Senior Services,
Inc V DHR. Facility Ser\ ices. Group Care Licensure Section
and
Diversified Health Group, LLC and The Innovative Health Group, Inc
Dialysis Care of NC, LLC. d/b/a Dialysis Care of Rowan County
V DHR, Division of Facility Services. Certificate of Need Section
v Biomedical Applications of NC. Inc d/b/a BMA of Kannapolis d/b/a
Metrolina Kidney Center of Kannapolis (Lessee) and Metrolina Nephrology
Associates. PA (Lessor)
Robin Annette Reavis v Health and Human Svcs . Div of Facility Svcs,
Jennifer Blofeld v DHHS. Facility Svcs . Health Care Personnel Registry
Sunlile Retirement Home. Winnie Jane Johnson v DHR. Facility Services
Helen Shokoti v Health and Human SerMces. Div of Facility Services
Ann Davis Rest Home v Group Care Licensure Section
Diane Lingard v DHR. Facility Svcs. Health Care Personnel Reg
Kimberly Annette Smith Hull \ DHHS, Division of Facility Services
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington.
Inc . and New Hanover Health Care Center. LLC v. DHHS. Div of
Facility Sen. ices. Certificate of Need Section,
and
Devin Partnership and Devin Health Care Associates, L L C , Columbia
Cape Fear Healthcare System, Limited Partnership, Living Centers
Southeast, Inc , Lutheran Retirement Center-Wilmington Inc , and
New Hanover Health Care Center LLC
Living Centers-Southeast, Inc , Lutheran Retirement Center-Wilimington,
Inc , and New Hanover Health Care Center. L L C v DHHS. Div of
Facility Sen. ices. Certificate of Need Section,
and
Devin Partnership and Devin Health Care Associates. L L C . Columbia
Cape Fear Healthcare System. Limited Partnership. Living Centers
Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and
New Hanover Health Care Center L L C
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington.
Inc . and New Hanover Health Care Center. L L C v DHHS. Div of
Facility Serv ices. Certificate of Need Section,
and
Devin Partnership and Devin Health Care Associates, L L C , Columbia
Cape Fear Healthcare System. Limited Partnership. Living Centers
Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and
New Hanover Health Care Center LLC
Deborah Ann Holt v DHHS. Division of Facility Services
Tern Michelle Tyler v Health & Human Svcs. Div of Facility Services
Dons Jones Holmes \ DHHS. Facility Svcs. Health Care Personnel Reg
Annie K Morgan v Health & Human Senices . Facility Sen ices
Shirlev Bowling v DHHS. Facilitv Sen ices. Health Care Personnel Reg
Johnnie E Williams v DHHS. Division of Facility Senices
Christy Jeton Hall v DHHS. Division of Facility Senices
Latonia Denise Thomas v DHHS, Division of Facility Senices
Tracey Deirde Galloway v DHHS. Facility Svcs , Health Care Per Reg
Happy Dan's Home. Gladys Cooke v Facility Svcs . Group Care Lie Sect
Rose Mane Hadlev v DHHS. Division of Facility Senices
Division of Medical Assistance
Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr.
and Harry Mahannah. M D v DHHS. Division of Medical Assistance
Alic F Schneider. Julia R Hammonds v DHHS. Medical Assistance
Division of Social Services
William & Crvstal Steakley v DHHS. Division of Social Senices
Raji Abdus-Salaam v Department of Human Resources. DSS-DCA
Child Support Enforcement Section
Robert H Black v Guilford County Child Support Enforcement
Dorman E Drake v Department of Human Resources
Garry R McNeill v Department of Human Resources
Robert .Alan Davis v Department of Human Resources
97 DHR 1034
97 DHR 1046*
97DFiR 1209
97 DHR 1279
97 DHR 1529
97 DHR 1588
Becton
Phipps
Reilly
Mann
Gray
Phipps
98 DHR 0245*" Phipps
98 DHR 0247*'- Phipps
07/30/98
07/23/98
06/23/98
09/08/98
06/24/98
08/31/98
97 DHR 1672
Reilly
08/12/98
98 DHR 0096
Grav
08/21/98
98 DHR 0124
Phipps
06/11/98
98 DHR 01 73
Chess
08/26/98
98 DHR 0197
Phipps
06/23/98
98 DHR 02 14
Becton
06/22/98
98 DHR 0239
Phipps
06/23/98
98 DHR 0244*"
Phipps
11/24/98
11/24/98
11/24/98
98 DHR 0348
Phipps
06/22/98
98 DHR 0458
Gra\
08/21/98
98 DHR 0463
Grav
08/21/98
98 DHR 0496*'
Phipps
07/23/98
98 DHR 0547
Grav
11/09/98
98 DHR 0639
Reilly
07/02/98
98 DHR 0706
Grav
10/12/98
98 DHR 0809
Grav
10/23/98
98 DHR 0824
Grav
09/24/98
98 DHR 0885
Owens
11/19/98
98 DHR 0970
Smith
10/08/98
97 DHR 0621
Smith
07/08/98
98 DHR 0994
Mortison
10/29/98
98 DHR 0076
Grav
07/20/98
98 DHR 0771
Owens
07/30/98
96CRA 1548
Mann
10/09/98
96CRA 1717
Smith
08/25/98
96 CRA 1 743
Reillv
10/22/98
96CR.A 1781*"
Phipps
08/20/98
I3:I2NCR I0I8
I3:12NCR I0I8
13:12NCR 1018
1010
NORTH CAROLINA REGISTER
December 15, 1998
13:12
CONTESTED CASE DECISIONS
AGENCY
Michael W. White v Department of Human Resources
Troy R Emmons. Jr v Department of Human Resources
Marvm A Pike v Department of Human Resources
Mar\' Putnam Aver. \' DSS. Durham Count\ Child Support Enforcement
Gilbert G Gra\ v Department of Human Resources
Herbert Leon Sellers v Department of Human Resources
David W Da\is v Department of Human Resources
DaleW Hutchinson V Department of Human Resources
Joe A LvTich v Department of Human Resources
Kenneth Eugene Scott v Department of Himian Resources
Mark Owens Fnnk v Department of Human Resources
Jeffer\ Lee Graves v Department of Human Resources
Donald L Carr. Jr v Department of Human Resources
Marvm Diggs \ Department of Human Resources
Michael Patrick D\me v Department of Health & Human Services
Sherman L Arnold Sr v Department of Health & Human Services
Dennis Lee McNeill v Department of Human Resources
BvTon O Ashbv II v Department of Human Resources
Hubert L. Morrison v Department of Human Resources
Robert Alan Davis v Department of Human Resources
Larrs S Robinson v Child Suppon Enforcement Agency
Darryl C Thompson v Department of Health & Human Services
Darrs 1 C Thompson v Department of Health & Human Ser\ices
Michael Anthony Hill v Department of Human Resources
Joseph L Hill v Department of Human Resources
Michael A Wilder v Department of Human Resources
Billy Anthony Jr v Department of Human Resources
Lawrence Wilkes v Department of Human Resources
Alton D Bagley v Department of Human Resources
Bemel B Beny Jr v Depanment of Human Resources
Darryl Simpkins v Department of Health & Human Ser\'ices
AnthonN Montgomery v Department of Human Resources
Joseph Gerard McPhillips \' Department of Human Resources
Terr\ Letterman v Department of Human Resources
William E Mines v Department of Human Resources
Chnstopher Alan v Department of Human Resources
Annette Chipman v Department of Human Resources
Paul J Mobley. Jr v Department of Human Resources
Alvin G Piper \ Depanment of Health & Human Services
Robert A Shererv Department of Human Resources
Rodney A Momson v Department of Human Resources
Gregors Andre Broun \ Department of Health & Human Services
Rodger Hazen II v Department of Human Resources
Wade A Burgess v Depanment of Human Resources
Robert L Robinson v Depanment of Human Resources
Jamie A Hunt v Depanment of Health & Human Serxices
Renardo Jenkins v Depanment of Human Resources
Anthon> Love v Department of Human Resources
Steven Kent Gold v Depanment of Human Resources
Lero\' J Poole \ Department of Human Resources
Hoyal A McLean v Department of Health & Human Services
Michael Bernard Hill v Department of Health & Human Senices
Charlie Ratliff Jr v Department of Health & Human Services
Donald W Lee v Department of Health & Human Services
Bobby D Cook v Department of Health & Human Services
John B Hall v Department of Human Resources
Demck A Brinton \, Department of Human Resources
Tabatha D Pate v Department of Human Resources
Amanda F Blount v Department of Human Resources
Gregop. Carty (I V # 1 564206 ) v Department of Human Resources
Gregorv Carty (IV#1564166) v Depanment of Human Resources
John L Bullard v Depanment of Human Resources
Frank A Cotton v Departmemof Human Resources
Charlie Gray Hunt Jr v Department of Human Resources
Willie R Cruse V Department of Health & Human Services
Thomas H Lotze, Jr \ Department of Health & Human Senices
Robert L Williams v Depanment of Human Resources
Patrick Bass v Department of Health & Human Services
Tawanna Wheeler \ Department of Health & Human Services
Timothy Kinney v Depanment of Health & Human Services
Teresa L Gallowa\ v Depanment of Health & Human Services
Michael A Looper v Department of Health & Human Services
Kenneth E Strickland v Department of Health & Human Services
Ho\1 H Bunt Jr v Department of Health & Human Services
CASE
DATE OF
NtMBER
ALJ
DECISION
96CRA 1784
Gray
09/25/98
96CRAI798
Reilly
08/25/98
96CRA 1814
Chess
09/24/98
96CRA 1849
Mortison
09/01/98
96CRA 1858
Momson
10/08/98
96CRA1932
Smith
11/06/98
96CRA 1976
Smith
11/06/98
96CRA 1981
Mann
08/26/98
97 CRA 0045
Phipps
10/09/98
97CRA1232
Chess
11/06/98
97 CRA 1524
Mann
10/09/98
98 CRA 0137
Becton
06/23/98
98 CRA 0545
Reillv
06/08/98
98 CRA 0588
Reilly
06/24/98
98 CRA 0787
Gray
09/1 7/98
98 CRA 1152
Mann
10/28/98
96CSE1305
Gray
06/22/98
96CSE1435
Mann
07/15/98
96CSE1649
ReilK
08/12/98
96CSE 1780»'
Phipps
08/20/98
96CSE1848
Gray
11/05/98
96CSE1854'"
Chess
09/01/98
96CSEI902*"
Chess
09/01/98
96 CSE 2028
Mann
08/26/98
97 CSE 0624
Chess
11/06/98
97 CSE 1301
Chess
07/17/98
97 CSE 1393
Reilly
06/24/98
97 CSE 1419
Gray
11/17/98
97 CSE 1424
Chess
06/02/98
97 CSE 1435
Smith
06/12/98
97 CSE 1436
Chess
08/11/98
97 CSE 1442
Phipps
06/17/98
97 CSE 1467
Mann
10/09/98
97 CSE 1492
Smith
06/22/98
97 CSE 1527
Mann
09/08/98
97 CSE 1544
Chess
10/16/98
97 CSE 1545
Phipps
07/23/98
97 CSE 1568
Phipps
06/1 7/98
97 CSE 1599
Phipps
11/10/98
97 CSE 1605
Mann
07/15/98
97 CSE 1611
Gray
10/23/98
97 CSE 1656
Gray
08/27/98
97 CSE 1666
Chess
07/17/98
98 CSE 0071
Momson
06/12/98
98 CSE 0130
Reilly
07/15/98
98 CSE 0307
Momson
07/06/98
98 CSE 0310
Smith
06/23/98
98 CSE 03 12
Phipps
06/23/98
98 CSE 0333
Momson
07/01/98
98 CSE 0375
Reilly
07/02/98
98 CSE 0420
Smith
07/29/98
98 CSE 0421
Becton
07/15/98
98 CSE 0449
Mann
07/15/98
98 CSE 0469
Gray
11/09/98
98 CSE 0483
Reilly
10/06/98
98 CSE 0506
Chess
07/20/98
98 CSE 0555
Smith
08/07/98
98 CSE 0556
Becton
06/23/98
98 CSE 0560
Chess
07/29/98
98 CSE 0561 •■'
Phipps
09/23/98
98 CSE 0562*"
Phipps
09/23/98
98 CSE 0569
Momson
08/06/98
98 CSE 0578
Gray
10/08/98
98 CSE 0607
Smith
06/22/98
98 CSE 0653
Mann
08/26/98
98 CSE 0658
Phipps
08/31/98
98 CSE 0682
Smith
06/22/98
98 CSE 0689
Owens
09/18/98
98 CSE 0691
Owens
10/09/98
98 CSE 0728
Smith
09/17/98
98 CSE 0769
Becton
07/30/98
98 CSE 0783
Chess
09/08/98
98 CSE 081 7
Mann
09/08/98
98 CSE 0818
Momson
09/15/98
Pl'BLISHED DECISION
REGISTER CITATION
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1011
mmsimmMUS BSBm
CONTESTED CASE DECISIONS
AGENCY
Vemon Reginald Pinkney v. Department of Health &. Human Sen ices
Elijah G Deans v Department of Health & Human Services
James Howard Alexander \ Department of Health & Human Services
Lee J Coggms V Department of Human Resources
Mark J Houlbrook \ Department of Health & Human Ser\ices
Henr. A Hamel. Jr v Depanment of Health & Human Services
Amanda F Haviland Blount \ Department of Health & Human SerMces
Deniira Jeffries v Department of Health & Human Services
Brvan L Barksdale \ Department of Health & Human Services
Karen Mitchell v Depanment of Human Resources
Roben S Willett v Department of Health & Human Ser\ices
Vickie E Lane V Michael L Adams. Department of Human Resources
Carla P Robinson v Depanment of Human Resources
Rachel D Farmer v Department of Health & Human Services
Janice Scott Padgett (Fisher) v Department of Human Resources
Barbara Fanta-Blandine \ Department of Human Resources
Sharon Brim v Department of Health & Human Sen ices
Sherr. L Hampton v Department of Human Resources
Terita M Sharpe \ Department of Human Resources
Ruth McFadden v Department of Human Resources
Division of Women 's and Children 's Health
K-hamis A Sirhan v DHHS. Women's/Children's Health. Nutntion Svcs.
Joseph \ Nauas v DHHS. Women's/Children's Health. Nutntion Svcs.
Mohamad I Rahman % DHHS. Womens/Childrens HIth. Nutr Svcs Sect
E\el\Ti Powell v Nutntion Services Section
JUSTICE
James Todd Tippet \
NC Companv Police Program
Alarm Systems Licensing Board
Claude David Huggins \ .Alarm Systems Licensing Board
Ja\ Michael RatclifTv .Alarm Systems Licensing Board
Auctioneer Licensing Board
Wilev R Tvndall v .Auctioneer Licensing Board
Gavin Haviv .Abadi \ .Auctioneer Licensing Board
Education and Training Standards Division
Thomas Dwavne Brown \ Shenffs' Education & Training Standards Comm
Kenneth Joseph Jackson v Shenffs' Education & Training Standards Comm
Odis Fitzgerald Darden v Sheriffs' Education & Training Standards Comm
Kenneth Earl Brantley v Cnminal Justice Ed & Training Stds Comm
Hovie Kenneth Wise. Jr \ Shenffs' Education & Training Standards Comm
Hearl Oxendine v. Criminal Justice Education & Training Stds Comm
James Fanell Roberts v Criminal Justice Education & Training Stds Comm
Phillip Keith McPherson v Shenffs' Education & Training Standards Comm
Darvl LaMar Brvant v Shenffs' Education & Training Standards Comm
Harold F Esters v Shenffs' Education & Training Standards Comm
William Scott Key v Shenffs Education & Training Standards Comm
Cecil W Duke. Jr v Cnminal Justice Education & Training Stds Comm
Amado Martinez v Criminal Justice Education & Training Stds Comm
Johnnv Wavne Wills \ Criminal Justice Education &. Training Stds Comm
James E Ellerbe v ShentTs' Education & Training Standards Comm
Paul Har\e\ Taylor v DOJ. Criminal Justice Ed & Training Stds Comm
Kenneth Joseph Jackson v Sheriffs' Education & Training Standards Comm
KelK Suzanne Ma\ berry \ Shenffs' Education & Training Stds Comm
Robert R\an Hardison \ Sheriffs' Education & Training Standards Comm
Tracev Jerome Clark \ Shenffs' Education & Training Standards Comm
Kevin Lamar Dorse\ v Shenffs' Education & Training Standards Comm
Willoughbv McCormick. Jr v Sheriffs' Ed &. Training Standards Comm
Private Protective Services Board
Wavne Care\ \ Pri\ ate Protects e Serv ices Board
Claims Venl'ication. Inc \ Pnvate Protective Serv ices Board
Walter R Shirerv Private Protective Services Board
Stacev L Williams \ Private Protective Serv ices Board
Eugene Norman Ganett \ Private Protective Services Board
G Russell Smith \ Private Protective Services Board
David C Brisson v F^vate Protective Senices Board
Dannv Charles Garrett v Pnvate Protective Sen ices Board
Dennis Ra\ Hvatt \ Private Protective Sen ices Board
.Alfred D Malson v Pnvate Protective Senices Board
Rodnev Hamilton Marsh v Pnvate Protective Senices Board
CASE
DATE OF
PUBLISHED DECISION
MMBER
ALJ
DECISION
REGISTER CITATION
98CSE0833
Owens
07/29/98
98CSE0867
Phipps
07/20/98
98 CSE 0869
Reilly
08/06/98
98 CSE 0894
Smith
08/20/98
98 CSE 0949
Smith
09/08/98
98 CSE 0975
Chess
09/01/98
98 CSE 0985
Mann
11/18/98
98 CSE 1036
Morrison
09/15/98
98 CSE 1052
Morrison
10/09/98
98 CSE 1095
Reilly
10/06/98
98 CSE 11 53
Chess
11/19/98
96 DCS 2105
Grav
07/08/98
97 DCS 0124
Reilly
11/10/98
97 DCS 0251
Phipps
08/31/98
97 DCS 1219
Smith
07/29/98
97 DCS I486
Morrison
06/22/98
97 DCS 1574
Grav
08/04/98
98 DCS 0257
Morrison
12/01/98
98 DCS 0468
Momson
06/09/98
98 DCS 0675
Reilly
07/15/98
98DHR02I9
Reillv
08/11/98
98 DHR 0637
Phipps
07/02/98
98 DHR 0923
Chess
11/06/98
98 DHR 1135
Smith
11/13/98
97 DOJ 1368
Phipps
09/1 0/98
98 DOJ 0871
Momson
07/09/98
98 DOJ 1345
Owens
11/19/98
97 DOJ 1236
Phipps
07/24/98
98 DOJ 1060
Smith
10/21/98
97 DOJ 1319
Phipps
07/29/98
97 DOJ 1578'*
Grav
08/20/98
97 DOJ 1698
Reilly
06/12/98
98 DOJ 0046
Gray
11/04/98
13 11 NCR 935
98 DOJ 0022
Smith
07/14/98
98 DOJ 0121
Smith
06/22/98
98 DOJ 0147
Smith
07/16/98
98 DOJ 0388
Reilly
07/24/98
98 DOJ 0430
Gray
07/21/98
98 DOJ 043 1
Grav
08/21/98
98 DOJ 0432
Becton
06/08/98
98 DOJ 0479
Chess
1 0/07/98
98 DOJ 0526
.Momson
09/09/98
98 DOJ 0574
Chess
07/30/98
98 DOJ 0600
Momson
08/07/98
98 DOJ 0841
Phipps
09/16/98
98 DOJ 0847*'
Grav
08/20/98
98 DOJ 0875
Chess
11/13/98
98 DOJ 0878
Phipps
09/08/98
98 rXDJ 0879
Owens
08/31/98
98 DOJ 0930
Phipps
09/22/98
98 DOJ 1007
Reilly
10/13/98
98 DOJ 0619
Owens
11/19/98
98 DOJ 0848
Smith
08/04/98
98 DOJ 0937
Momson
09/17/98
98 DOJ 0938
Momson
08/18/98
98 DOJ 0939
Momson
08/18/98
98 DOJ 0940
Owens
11/19/98
98 DOJ 0941
Owens
11/19/98
98 DOJ 1081
Momson
09/17/98
98 DOJ 1139
Owens
11/19/98
98 DOJ 1141
Momson
09/29/98
98 DOJ 1142
Owens
11/04/98
1012
NORTH CAROLINA REGISTER
December 15, 1998
13:12
CONTESTED CASE DECISIONS
AGENCY
Melvin Eugene Davis v Private Protective Services Board
Glen Leon Fitchette v Pnvate Protective Services Board
!^BOR
I ; :dreth Mechanical & Maintenance v Labor/Labor Standards
Labor World, Enc Feinstein v Labor Harry E Payne, Jr
BOARD OF MEDICAL EXAMINERS
Joe D Crawford, M D v Medical Bd of NC Bd of Medical Examiners
PIBLIC INSTRUCTION
Linda & Danny Howard for Nikki Howard v DHHS, Murdoch Center
George & Ruth Sinclair for Adam Sinclair v Wake County Schools
(Special Education Services)
Nicholas Eirschele, By and Through! His Parents, Charles & Kathleen
Eirschele v Craven County Board of Education
Dewitt Brinson & Elizabeth Brinson v Craven County Board of Education
Gene Edward Lloyd v Department of Public Instruction
Mrs Phyllis Y Moore v Cumberland County Schools
Laney Bruce Harrill v State Board of Education
L K on behalf of her son, J H , as well as on her own behalf v St Bd /Ed
Joseph J Sarrerro v Department of Public Instruction
M E and her husband, PE , individually, and on behalf of their son, C E
V Bd of Ed. for Buncombe Cty a/k/a Buncombe Cty Public Schools, et al
Linda & Danny Howard for Nikki Howard v Lenoir Cty Bd of Ed
STATE BAR
Linda R Sharp v North Carolina State Bar
STATE PERSONISEL
CASE
DATE OF
NUMBER
ALJ
DECISION
98DOJ 1145
Morrison
09/22/98
98 DOJ 1307
Owens
11/03/98
98 DOL 0903
Mann
1 1/04/98
98 DDL 1256
Gray
11/05/98
98BME0870
Owens
07/30/98
97 EDC 1047
Gray
11/03/98
97 EDC 1233
Phipps
08/11/98
97 EDC 1234
Phipps
07/16/98
97 EDC 1298
Phipps
10/26/98
98 EDC 01 10
Reillv
09/10/98
98 EDC 0305
Gray
08/05/98
98 EDC 0350
Smith
09/17/98
98 EDC 0370
Smith
10/14/98
98 EDC 0459
Owens
08/10/98
98 EDC 0566
Gray
10/01/98
PUBLISHED DECISION
REGISTER CITATION
98 EDC 1047
98 BAR 1344
Gray
Morrison
10/30/98
11/09/98
Depart meni of Correction
Annie D Dizon v NC Correctional (Inst ) Center for Women
Terry T Rees v Department of Correction
Mohammad H Baloch, M D. v Department of Correction
Leon Owens v Department of Correction
Terry T Rees v Department of Correction
Michael A Smith v Department of Correction
Michael A Smith v. Department of Correction
Jayne D Bledsoe v Correction, Div of Adult Probation & Parole
Carl W Craven, II v Pender Correctional Institution
Ervin Shaw v Martin Homer Asst Super . Corr . Sandy Ridge Corr Ctr.
Joseph Szilagyi v Department of Correction
Dennis S Harrell v Dept of Correction. Caledonia Correctional Institute
Tommy L Hancock v Department of Correction
Tommy L Hancock v Department of Correction
Bertha Darden v Raymond Smith & Dept of Correction, Central Prison
Ruth Moseley v Department of Correction
Lamont M Burt \ Department of Correction
Leo Powell v Harnett Correctional Institute, Department of Correction
NonaW Hubbard v DOC, Division of Community Corrections
Robert R Stovall v Department of Correction
Crime Control and Public Safe!}'
Roger D. Davis v. Crime Control & Public Safety, St. Hwy Patrol
Albert R Little v Crime Control &. Public Safety, Info Sys Specialists
Thomas E Carlton v Crime Control & Public Safety, St Hwy Patrol
Employment Security Commission
Jane B Bolin and Arlene G Sellers v Employment Security Commission
Jane B Bolin and Arlene G Sellers v Employment Security Commission
Environment and Natural Resources
Charles Anthony Bruce v. ENR, Division of Parks and Recreation
Health and Human Services
Annette Honea v Department of Human Resources
Angela M Miles v Cumberland County Department of Social Services
Shung Fung-Chin v Department of Human Resources, Caswell Center
Charity Swick v Cumberland County Department of Social Services
97OSP0I66
Mann
11/06/98
97 0SP1671*-'
Smith
06/30/98
98 DSP 0014
Gray
09/01/98
98 OSP 0050
Becton
07/10/98
98OSP0II9»"
Smith
06/30/98
98 OSP 023 1*"
Reilly
08/11/98
98 OSP 0317*"
Reilly
08/11/98
98 OSP 0543
Owens
07/29/98
98 OSP 0633
Smith
06/25/98
98 OSP 067 1
Phipps
10/09/98
98 OSP 0757
Owens
10/05/98
98 OSP 0846
Morrison
09/08/98
98 OSP 0881
Owens
08/04/98
98 OSP 0882
Owens
10/09/98
98 OSP 0905
Smith
09/25/98
98 OSP 1092
Gray
10/07/98
98 OSP 1115
Smith
10/06/98
98 OSP 11 75
Owens
11/25/98
98 OSP 1214
Owens
10/27/98
98 OSP 1282
Phipps
10/26/98
97 OSP 06 17
Chess
05/27/98
97 OSP 11 57
Morrison
07/22/98
98 OSP 091 9
Phipps
09/24/98
97 OSP 1122''
Chess
06/02/98
97 0SP1134''
Chess
06/02/98
98 OSP 0240
Reilly
06/08/98
96 OSP 0833
Chess
08/24/98
97 OSP 0613*-
Gray
07/10/98
97 OSP 0638*'"
Chess
08/13/98
97 OSP 0775
Gray
07/10/98
Consolidated Cases.
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1013
CONTESTED CASE DECISIONS
AGENCY
Yolandra Best and Ro\ Hudson v DHHS. John Umstead Hospital
Yolandra Best and Ro> Hudson v DHHS. John Umstead Hospital
Kenneth Dippel V Columbus Count\ Dept of Social Senices
Fred Foster, Jr v Depanment of Health and Human Senices
Shung Fung-Chin v Department of Human Resources. Caswell Center
Ruth Holroyd \ Montgomer. Cr> DSS. Children's Services
Fred Foster. Jr v Department of Health and Human Services
James W Crews v DHHS. Murdoch Center
Patricia R Quick v DHHS. Dorothea Dix Hospital
Angela M Miles v Cumberland Count\ Department of Social Services
Delores Laveme Rich \ Health & Human Ser\ ices. Dorothea Dix Hosp
Elwin C Munson v Health & Human Ser\ices. Juvenile Evaluation Center
Fred Foster. Jr v Department of Health and Human Ser\ ices
David A Kilpatrick \ Health & Human Ser\ ices. Caswell Center
Fred Foster. Jr v Depanment of Health and Human Services
Laura Blanton v Cleveland Center
.Anthon\ M Ruiz \ Department of Health & Human Svcs. Youth Svcs.
Rudolph Waters v DHHS. Youth Sen ices. Dobbs School
Euwell Falconer V Karen A Andrews. Gaslon-Lmcoln Area Mental Health
Jeffrey L Williams v Dorothea Dix Hospital
Barbara Jean Paquette v Durham County (respondeat superior for the
Durham County Public Library )
Linda Paige v Center Point Human Services Forsyth Mental Health
Forsyth Industrial Systems
Derrick Skinner v Health & Human Sen. ices. Cherry Hospital
Depanment of Justice
Linda Margaret Koss \ State Bureau of Investigation
Department of Public Instruction
Lillie Bumette Pearsall \ Wayne Cty Bd of Ed . Mrs Veda McNair and
Mr Stev e Ta\ lor
CASE
DATE OF
NTMBER
ALJ
DECISION
97OSP0862*"
Chess
08/13/98
97OSP0863*"
Chess
08/13/98
97OSP0905
Gray
11/09/98
97 0SP 1287»'=
Smith
08/20/98
97 0SP 1530»"
Chess
08/13/98
97 0SP 1586
Smith
05/27/98
97OSP1701''-
Smith
08/20/98
98 OSP 0060
Grav
07/20/98
98OSP006I
Becton
07/16/98
98 OSP 0084*'
Grav
07/10/98
98 OSP 0120
Gra\
07/08/98
98 OSP 0140
Phipps
10/28/98
98 OSP 0187*'-
Smith
08/20/98
98 OSP 0271
Owens
08/13/98
98 OSP 0403"=
Smith
08/20/98
98 OSP 0453
Smith
10/02/98
98 OSP 0454
Grav
06/04/98
98 OSP 0474
Morrison
07/30/98
98 OSP 0538
Reillv
08/06/98
98 OSP 0595
Becton
07/22/98
98 OSP 0765
Momson
08/05/98
98 OSP 0819
Smith
11/05/98
98 OSP 1035
Gray
09/21/98
97 OSP 0189
Chess
08/14/98
98 OSP 0944
Smith
08/25/98
PI BLISHED DECISION
REGISTER CITATION
13:02 NCR 257
Secretary of State
Jonathan M Demers \ Department of Secretary of State
Depanment of Transponation
Johnny O Shivar v Department of Transportation
Larry W Dav is \ Department of Transportation
Sherry Lytin Noles v Department of Transportation-NCD.MV
Clance Goodwin .Arthur v Department of Transponation. Femes Division
University ofNonh Carolina
Douglas Lo\e. Jr \ LiNC Hospitals
Deborah J Fenner v. NC Central University
Joyce M Smith \ Nonh Carolina Central University
Edwin Swam v University of North Carolina at Chapel Hill
Patncia A G Roberts v Asst /Chan /Qty Mgmt /Dir Human Res UNCW
Leo Watford. Roosevelt Parris. Claiborne Baker, et al \ University of
Nonh Carolina at Chapel Hill
Johnny Johnson. Jr v A & T St University Student Union-Grievance Bd
Jessie L Johnson v Bernard K Locklear. UINC at Pembroke
Jonathan L Fann v North Carolina State University Physical Plant
Greta M Hawthorne v University of NC at Pembroke
Robert W Brinson v NC State University
Albena \ Ingram-Peterson \ NC Central University
Fred T Jackson v U'NC-Charlotte Recreational Facilities
Betty Parks v Winston Salem State University
Ronnie Bell v Dave Hillard. UiNC at Charlone
ST\TE TREASl RER
Hugh .A Wells \ Consolidated Judicial Retirement System of NC:
Bd- of Trustees Teachers and State Employees' Retirement System
97 OSP 1018
Becton
07/07/98
97 OSP 1366
Reillv
09/01/98
98 OSP 0241
Grav
07/08/98
98 OSP 0269
Chess
08/11/98
98 OSP 0864
Phipps
09/24/98
97 OSP 0662
Reillv
06/08/98
97 OSP 0902
Chess
05/29/98
97 OSP 1297
Smith
06/25/98
97 OSP 1694
Momson
07/31/98
98 OSP 01 78
Phipps
10/08/98
98 OSP 0254
Chess
07/17/98
98 OSP 0299
Owens
09/02/98
98 OSP 0444
Grav
09/29/98
98 OSP 0465
Becton
07/17/98
98 OSP 083!
Chess
09/11/98
98 OSP 0887
Ow ens
08/10/98
98 OSP 1024
Smith
10/14/98
98 OSP 1216
Smith
10/22/98
98 OSP 1278
Chess
11/25/98
98 OSP 1330
Smith
11/10/98
98DST0316
Momson
06/05/98
13:03 NCR 343
13:01 NCR 166
TRANSPORT.4TION
Da\ id Warren Dew et al
Motor Vehicles. Alexander Killens Comm
IM\ ERSIT\ OF NORTH CAROLINA
Patricia D Hall \ Lni\ersit% of North Carolina at Chapel Hill
Ladonna P James \ L^NC Hospitals
Joyceline Sellars v, UiNC Hospitals
95 DOT 1 1 44
Gray
06/04/98
98 \MC 0397
Reillv
08/20/98
98UfNC0591
Becton
07/20/98
98 UNCI 113
Smith
10/22/98
1014
NORTH CAROLINA REGISTER
December 15, 1998
13:12
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
98 CPS 0427
GODFREY AKENABOR
Petitioner,
NORTH CAROLINA CRIME VICTIMS
COMPENSATION COMMISSION
Respondent.
RECOMMENDED DECISION
Administrative Law Judge Melissa C. Owens heard this matter on October 22, 1998 in Raleigh, North Carolina,
APPEARANCES
For Petitioner: Charles F. Powers, Esq.
Sink Powers Sink & Potter
P.O.Box 1471
Raleigh, N.C. 27602
For Respondent: Jonathan P. Babb, Esq.
Assistant Attorney General
N.C. Department of Justice
RO. Box 629
Raleigh, N.C. 27602-0629
ISSUE
Whether the Respondent properly denied the Petitioner's victims compensation claim on the ground that the victim
participated in criminal conduct at or about the time of her death?
FINDINGS OF FACT
The undersigned finds the following facts:
1. The parties are properly before the Office of Administrative Hearings and the Office of Administrative Hearings
has subject matter and personal jurisdiction over this contested case.
2. The burden of proof is on the Petitioner to prove by a preponderance of evidence that Respondent improperly denied
his victims compensation claim and he is entitled to such compensation.
3.
Petitioner.
Petitioner is the husband of Stephanie Akenabor. Petitioner and Mrs. Akenabor have two children who live with
4. Petitioner last saw Mrs. Akenabor on January 13, 1998.
5. On January 19, 1998, Stephanie Akenabor was found shot and killed by a man with whom she had been living for
at least one week.
6. On January 19, 1998, Wake County Sheriffs Department Investigator Detective E. W. Woodlief investigated the
scene and found the deceased victim in a rear bedroom at the scene. Detective Woodlief also discovered victim's identification and
a crack pipe in a purse located near the victim.
7. Detective Woodliefs investigation revealed that the victim and Mr. Harrington, the perpetrator, had last been seen
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1015
M U MwaM g m M iwsma
HHUUIMHHHHIUllUllUHliJlMILUII
CONTESTED CASE DECISIONS
three to four days before Januan.' 1 9. 1 998. A criminal record check on the victim indicated she had been charged with soHcitation
of prostitution and possession of drug paraphemaHa.
8. The victim had a historv' of cocaine abuse and had been in a rehabilitation center for cocaine abuse for three months
in 1997. Several years ago the victim lost custody of her children to Petitioner due to her cocaine use.
9. Both the Medical Examiner's Report and the Toxicology Report indicated the presence of cocaine in the victim's
bod)' at the time of her death.
10. There was no evidence presented by Petitioner and no evidence through Detective Woodliefs investigation proving
the victim was forced to ingest cocaine at or near the time of her death.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the undersigned makes the following:
1. N.C. Gen. Stat. § 15B-1 1(a)(6) states that a claim shall be denied if the victim participating in a nontraffic
misdemeanor or felon\ at the time of the conduct that caused the injun,. N.C. Gen. Stat. § 90-95 makes it unlawful for an
unauthorized person to possess a controlled substance. N.C. Gen. Stat. § 90-90 lists cocaine as a controlled substance. These
provisions bar any recovery by the Petitioner in the instant case.
2. The United States Court of Appeals for the Fourth Circuit has held that a laboratory test establishing the presence
of a controlled substance in a person's body and evidence that decedent culpably or knowingly used a controlled substance amounts
to the possession of that controlled substance. U.S. v. Clark. 30 F.3d 23(1994). This is persuasive authority that the ingestion of
cocaine plus evidence of decedent's culpable use of cocaine should be treated as possession of same under the aforementioned
statutes.
3. In the instant case. Petitioner's claim is barred under N.C. Gen. Stat. § 15B-ll(a)(6) as she possessed cocaine at
the time of murder. Possession is established b\ the facts that the Toxicology Report shows the victim had cocaine in her body at
the time of her murder, that the victim had a history of cocaine abuse and evidence that Detective Woodlief found a crack pipe in the
victim's purse at the crime scene.
4. This decision does not mean that the victim's murder was justified, but that Petitioner's claim under North Carolina
Crime Victims Compensation is barred.
Based upon the above Findings of Fact and Conclusions of Law. the undersigned makes the following:
RECOMMENDED DECISION
The Commission's decision to deny the Petitioner crime victims compensation should be affirmed.
ORDER
It is hereby ordered that the agenc\ making the final decision in this matter serve a copy of the final decision to the Office
of Administrati\e Hearings. P.O. Drawer 27447. Raleiah. North Carolina. 27611-7447. in accordance with N.C. Gen. Stat. § 150B-
36(b).
NOTICE
The agenc\' making the final decision in this case is required to give each part>' an opportunit\- to file exceptions to this
recommended decision and to present vsritten arguments to those in the agency who will make the final decision. N.C. Gen. Stat. §
150B-36(a).
The agenc\ is required to serve a cop\' of the final decision on all parties and to furnish a copy to the parties' attorney on
record and to the Office of Administrative Hearings. N.C. Gen. Stat. § 150B-36(b). The agency that will make the final decision is
the North Carolina Victims Compensation Commission.
1016 NORTH CAROLINA REGISTER December 15, 1998 13:12
This the SO"" day of October, 1998.
CONTESTED CASE DECISIONS
MELISSA C. OWENS
ADMINISTRATIVE LAW JUDGE
13:12
NORTH CAROLINA REGISTER December 15, 1998
1017
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
98 DHR 0244
98 DHR 0245
98 DHR 0247
(
LIVING CENTERS-SOUTHEAST, INC.,
LUTHERAN RETIREMENT CENTER-WILMINGTON
INCORPORATED, and NEW HANOVER HEALTH CARE
CENTER, L.L.C.,
Petitioners,
V.
N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES
DIVISION OF FACILITY SERVICES, CERTIFICATE OF
NEED SECTION,
Respondent,
and
DEVIN PARTNERSHIP AND DEVIN HEALTH CARE
ASSOCIATES, L.L.C., COLUMBIA CAPE FEAR
HEALTHCARE SYSTEM. LIMITED PARTNERSHIP,
LIVING CENTERS SOUTHEAST, INC., LUTHERAN
RETIREMENT CENTER-WILMINGTON
INCORPOR^ATED, and NEW HANOVER HEALTH CARE
CENTER L.L.C.,
Respondent-Intervenors.
(
SUMMARY OF RECOMMENDED DECISION
The parties in this contested case proceeding filed cross motions for summar>' judgment. After hearing the arguments and
reviewing the pleadings, exhibits, affidavits and memoranda of law, the undersigned concludes as a matter of law that no genuine
issues of material fact exist. Therefore, summary' judgment is appropriate. Whether granted in whole or in part, the recommendation
is that no part>' may be granted a certificate of need to develop the nursing homes in New Hanover County.
I.
RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT CONCERNING THE
DECISION ON THE DEVIN PARTNERSHIP AND DEVIN HEALTHCARE ASSOCIATES.
L.L.C.
This matter came on for hearing before the undersigned Administrative Law Judge on June 2. 1998, in 98-DHR-0243,
98-DHR-0244, 98-DHR-0245, and 98-DHR-0247 upon motions by Petitioners New Hanover Health Care Center, L.L.C. ("New
Hanover Center") and Columbia Cape Fear Healthcare System, Limited Partnership ("'Columbia") for an order recommending
Summan, Judgment regarding the decision on The Devin Partnership and Devin Healthcare Associates, L.L.C. (collectively referred
to as "Devin").
APPEARANCES
Renee J. Montgomery
James C. Thornton
New Hanover Health Care Center, L.L.C.
Staci L. Tolliver
North Carolina Department of Human Resources,
Division of Facility Services. Certificate of Need Section
1018
NORTH CAROLINA REGISTER
December 15, 1998
13:12
CONTESTED CASE DECISIONS
William R. Shenton
Stephen R. Dolan
James E. Gates
Mary Beth Johnston
Maureen Demarest Murray
The Devin Partnership and Devin Healthcare
Associates, L.L.C.
Columbia Cape Fear Healthcare system. Limited
Partnership
Living Centers- Southeast, Inc.
Lutheran Retirement Center- Wilmington Incorporated
ISSUE
Whether Devin's Certificate of Need application failed to conform with N.C.G.S. §13 1E-I83(a)(5) as a matter of law because
Devin failed to document that sufficient funds were available and committed to the project.
UNDISPUTED MATERIAL FACTS
There are no genuine issues of material fact on the issue of whether Devin's Certificate of Need application conformed with
N.C.G.S. § 13 lE-1 83(a)(5). The following undisputed facts support this Recommended Decision:
1 . The 1997 State Medical Facilities Plan ("SMFP") identified the need for 110 additional nursing facility beds for
New Hanover County. New Hanover Center, Devin, Columbia, and Lutheran Retirement Center- Wilmington, Inc. ("Lutheran"), along
with certain other applicants not involved in these contested cases, filed applications with the North Carolina Department of Human
Resources, Division of Facility Services, Certificate of Need Section ("CON Section") to receive a CON to develop nursing facility
beds in New Hanover County, North Carolina.
2. Devin submitted an application for a Certificate of Need to develop a 110 bed nursing facility in Wilmington, North
Carolina. The Devin Partnership was named as lessor, and Devin Healthcare Associates, L.L.C, as lessee.
3. In a letter dated January 28, 1998, the CON Section disapproved the applications of New Hanover Center,
Columbia, Living Centers and Lutheran and conditionally approved the application of Devin. In a letter dated February 4, 1998, the
CON Section transmitted to the parties a copy of the Required Agency Findings.
4. In its application, Devin projected a total capital expenditure of $3,863,000. Of this amount, Devin proposed to
finance $3,090,400 through a conventional loan and $772,600 through owners' equity. Additionally. Devin proposed to finance its
start-up costs and initial operating expenses with a $400,000 line of credit.
5. In its findings, the CON Section determined that the Devin Application, as submitted, did not conform with
N.C.G.S. §§1 3 lE-1 83(a)(4) and (5). In its findings, the CON Section determined that there were deficiencies in the Devin application
which caused it to fail to conform as submitted with N.C.G.S. §§131 E-1 83(a)(4) and (5). Specifically, the CON Section found that
the bank letter submitted by Devinshire did not specify that the bank would, in fact, loan $3,863,000 and that the principals had not
submitted letters that specifically committed the necessary liquid assets to fund the equit>' contribution. The CON Section found that
Devin had failed to document that sufficient funds were available and committed to meet the capital needs, start-up costs and initial
operating expenses of the project as required by N.C.G.S. §131E-183(a)(5) which resulted in a finding that the application, as
submitted, also failed to conform with N.C.G.S. §131E-183 (a)(4). However, the CON Section did find the Devin application
conforming with N.C.G.S. §131 E-1 83(a)(5) as long as it met the conditions contained in the findings.
6. As an exhibit to its application, Devin included a letter fi-om the First National Bank of Wilmington reflecting a
general willingness to work with two of the twelve partners toward a financing proposal to be used to construct the facility. The letter
from First National Bank did not indicate that it had reviewed the financial position of Devin. or its principals, and found it to be
adequate to support the proposal as required by the CON Section and as requested in the CON Section's application form. Likewise,
the letter did not indicate that the bank intended to loan Devin $3,863,000 for the proposed project. Accordingly, the CON Section
concluded that "the letter . . . does not specify that it will loan $3,863,000 for the proposed project." The CON Section found the bank
letter did not sufficiently document the availability and commitment of a loan for the project.
7. Devin did not include the fmancial statements of the Devin Parmership or Devin Healthcare Associates, L.L.C, in
its application. Instead, the application included financial statements for the twelve principals of Devin. Certain assets in the financial
statements were circled. However, Devin's application did not include any letters or other documentation from the twelve principals
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1019
■ I M Ir>IIIW IMniMWIllim W lll«I L M<W»II II WI I IIWIKWLIIWUll«iMllimililllllH«^^
CONTESTED CASE DECISIONS
that specifically committed their assets to fund the owner's equity contribution of $772,600. The CON Section found that "the twelve
principals have not submitted letters that specifically commit the necessary liquid assets to fund the equity contribution of $772,600."
The CON Section found the twelve principals of Devin had not provided sufficient documentation showing a commitment of their
funds to the equity needed for the project.
8. Devin also did not provide any documentation committing the bank to provide it with a $400,000 line of credit for
start-up and initial operating expenses. The bank letter simply referenced the need for a line of credit.
9. The CON Section decided to conditionally approve Devin's application subject to thirteen conditions. Three of these
conditions dealt with funding:
(3) Prior to the issuance of the certificate of need. The Devin Partnership [Lessor] and
Devin Health Care Associates L.L.C. [Lessee] shall provide documentation from the owners that
$772,600 has been committed to finance the owner's equity portion of the capital expenditure.
(4) Prior to award of a construction contract. The Devin Partnership [Lessor] and Devin
Health Care Associates L.L.C. (Lessee] shall provide documentation of a loan commitment from
a lending institution for at least $3,090,400 for development of the proposed project.
(5) Prior to award of a construction contract. The Devin Parmership (Lessor] and Devin
Health Care Associates L.L.C. [Lessee) shall provide documentation of an approved credit line
from a lending institution for at least $400,000 for the start-tip and initial operating expenses
associated with the project.
10. In response to Condition 3, on March 2, 1998, Owen Autry Butler, one of the principals of Devin, submitted a letter
to the CON Section stating that the owners have committed $772,600 for the owner's equity portion of the proposed capital
expenditures for the project. Devin did not provide letters from the twelve principals that specifically commit $772,600 to fmance
owners' equity.
1 1 . The Partnership Agreement of the Devin Partnership submitted with Devin's application does not authorize any of
the partners to commit the personal assets of any of the individual partners to the business of the partnership. Instead, the agreement
requires the written consent of all of the partners before any partner may advance any monies to the partnership in excess of the
amount of his or her first contribution to capital.
CONCLUSIONS OF LAW
\. Chapter 13 IE. Article 9 of the North Carolina General Statutes sets forth review procedures and standards
applicable to Certificate of Need applications. Certain statutory review criteria are specifically set forth in N.C.G.S. §131E-183(a),
and an applicant must meet these criteria before the CON Section may issue the applicant a certificate of need. See N.C.G.S.
§ 13 1 E-1 83(a): see also Presbyterian-Orthopaedic Hospital y, Dept. of Human Resources, et ah 122 N.C. App. 529. 470 S.E.2d 83 1
( 1 996). Thus, for a CON application to be approved, it must be found fully conforming to all applicable statutory and regulatory
criteria. ("An application must comply with all review criteria."); see also. Retirement Villages. Inc. et af y, Dept. of Human
Resources, et al.. 124 N.C. App. 495, 477 S.E.2d 697(1996) ("Since we have determined that the applicants are each nonconforming
to the statutory criteria on at least one ground, we see no need to reach the remainder of the applicants' arguments.").
2. Summary' Judgment in a contested case regarding an application for a Certificate of Need is appropriate when there
is no genuine issue of material fact regarding an applicant's failure to comply with one of the statutory' criteria or regulations governing
applications for a Certificate of Need. Presbvlerian-Orthopaedic Hospital v. Dept.. of Human Resources, et al, 122 N.C. App. 529,
470S.E.2d831 (1996).
3. Statutory review Criterion 5 ("Criterion 5"), N.C.G.S. §131E-183(a)(5), provides;
Financial and operational projections for the project shall demonstrate the availability of fionds for capital and operating needs as well
as the immediate and long-term financial feasibility of the proposal, based upon reasonable projections of the costs of and charges
for providing health services by the person proposing the services.
4. In Retirement Villages y, Dept. of Human Resources, 124 N.C. App. 495, 477 S.E.2d 697 (1996), the North
Carolina Court of Appeals held that Criterion 5 requires an applicant to show that; (1) sufficient funds are available to meet the
1020 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
financial requirements of the project; and (2) the persons or entities that are fiinding the project have committed those fimds to the
proposed project.
5. The letter from First National Bank which Devin submitted with its application was not sufficient to satisfy the
requirements of Criterion 5 because it showed neither the availability nor the commitment of a bank loan for approximately
$3,090,400 necessary for the proposed project. The CON Section correctly determined that the bank letter was not sufficient to meet
the requirenients of Criterion 5.
6. Devin also failed to show a commitment to fiind the owner's equity portion of the capital expenditure, $772,600.
Although the application proposed that the individual owners of Devin would fiind owner's equity and financial statements from the
owners were provided, these financial statements do not constitute suflficient evidence of a commitment by the principals to provide
these funds as required under Criterion 5. See, Retirement Villages y^ Dept. of Hiunan Resources, 124 N.C. App. 495, 477 S.E.2d
697 ( 1 996) (financial statements submitted by the funding entity were not sufficient evidence of a commitment to provide the funds
for the project). There is nothing in the Devin application showing a commitment by the twelve principals to fund the owner's equity
portion of the capital expenditure. The CON Section correctly determined that Devin failed to the availability of owner's equity.
7. Devin also failed to show the availability of a $400,000 line of credit which it represented would be necessary for
startup and initial operating expenses. The general acknowledgment from First National Bank of Wilmington that a line of credit
would be required is not sufficient to show either the availability or the commitment of fimds for startup and initial operating expenses
as required by Criterion 5.
8. The CON Section is authorized pursuant to N.C.G.S. § 1 3 1 E- 1 86(a) to approve a CON application with conditions;
however, in a competitive review, it is arbifrary and capricious for the Agency to use conditions to obtain statutorily required
information to complete a nonconforming application. To do so places the conditionally-approved nonconforming applicant at an
unfair advantage over the unapproved nonconforming applicants. N.C.G.S. §13 IE- 183(a) requires that the Agency determine that
"... an application is either consistent with or not in conflict with these [statutory] criteria before a certificate of need for the proposed
project shall be issued." (Emphasis added.) The determination of conformity must be based on information in the application, not
information submitted after the Agency's decision. Consequently, the CON Section was not authorized to conditionally approve
Devin's application when the application failed to document the availability and commitment of funds as required under Criterion 5.
9. The Agency's regulation, 1 NCAC 3R.03 1 3(a), which states that the Agency can conditionally approve an application
that does not conform with all review criteria, is void as applied in this case because it is beyond the Agency's statutory authority.
N.C.G.S. § 1 50B-33(b)(9) and § 1 3 1 E- 1 83(a). In Retirement Villages, the North Carolina Court of Appeals held that:
an application for a certificate of need must contain evidence of a commitment to provide fiands
by the flmding entity. We hold that without such a commitment, an applicant cannot adequately
demonsfrate the availability of fiands or the requisite financial feasibility.
Retirement Villages. Inc. y. Dept. of Human Resources. 1 24 N.C. App. at 499; see also. Presbyterian-Orthopaedic Hospital y, Dept.
of Human Resources et ak, 122 N.C.App. 529, 470 S.E.2d 831 (1996)("an application must comply with aH review criteria.");
Britthaven. Inc. v. Dept. of Human Resources. 118 N.C.App. 379,385,455 S.E.2d 459, disc, review denied , 341 N.C. 418. 461
S.E.2d 754 (1995)("The language of the statute demonstrates the intent of the Legislature to have the Agency first ensure that each
application comports with the statutory and regulatory criteria."). Thus, Devin was required to provide sufficient documentation of
the availability and commitment of funds for its proposed project. Absent such documentation in its application, the CON Section
could not conditionally approve Devin's application.
10. Moreover, the fourth and fifth conditions imposed by the Agency on Devin are insufficient as a matter of law for
an additional reason. These conditions stated that "prior to the award of a construction contract" Devin "provide documentation of
a loan commitment from a lending institution for at least $3,090,400 for the development of the proposed project," and that Devin,
provide documentation for an approved credit line from the lending institution for at least $400,000 for the start-up and initial
operating expenses associated with the project." Thus, the conditions stated by the CON Section only required Devin to show a
commitment of funds prior to the award of a construction contract by Devin; they did not require that Devin show a commitment of
funds prior to the issuance of the Certificate of Need. N.C.G.S. § 1 3 1 E- 1 83(a), however, specifically requires that an application be
"consistent with or not in conflict with these criteria before a Certificate of Need for the proposed project shall be issued." (emphasis
added). Consequently, because the conditions imposed by the Agency did not require Devin to comply with the applicable statutory
and regulatory criteria prior to the Agency issuing a Certificate of Need to Devin, these conditions are in excess of the Agency's
statutory authority.
13:12 NORTH CAROLINA REGISTER December 15, 1998 1021
p wiina i iiiwm i Mioim M mMWM Bi M B MiajBi i i i ujiJLiiiuiiMiiiiiiuiiii i iiMJii i iiiiiiij^^ ■
CONTESTED CASE DECISIONS
1 1 . Devin also has failed to compK' with the third condition imposed b> the CON Section. Owen Autry Butler's letter
stating that the owners were committing funds to finance the owners equit\ portion of the proposed capital expenditure does not
constitute sufficient documentation of a commitment of funds to the proposed project from the owners. Consequently, even if the
Agency were authorized to impose Condition 3. De\ in has failed to submit documentation showing compliance with that condition.
12. Because this recommended decision addressed one issue in this contested case, the undersigned concluded that it
was interlocutor.' in nature and therefore, not subject to review for final agency decision at that time. N.C.G.S. § 1 A-1 . N.C. Civ. Proc.
Rules 54 and 56; 26 NCAC 3 .0101(1). This decision is now incorporated into this recommended decision.
RECOMMENDED DECISION
It is hereb>' recommended that the Motions for Summarv Judgment as to Devin's Certificate of Need application be
GRANTED, and that a Certificate of Need should not be issued to Devin because in its application as submitted. Devin failed to
demonstrate conformity with N.C.G.S. § 131E-183(a)(5).
XL RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT
CONCERNING THE DECISION OF LUTHERAN RETIREMENT
CENTER-WILMINGTON, INC.
This matter came on for hearing before the tmdersigned Administrative Law Judge on September 1 8. 1 998 in 98-DHR-0244,
98-DHR-0245. and 98-DHR-0247 upon motions by Petitioners New Hanover Health Care Center. L.L.C. ("New Hanover Center")
and Li\ ing Centers-Southeast. Inc. ("Living Centers") for an order recommending Summar\- Judgment regarding the decision on
Lutheran Retirement Center- Wilmington, Inc. ("Lutheran").
APPEARANCES
Renee J. Montgomen.-
James C. Thornton
New Hanover Health Care Center. L.L.C.
Staci T. Mever
North Carolina Department of Health and Human Services.
Division of Facilit\ Services, Certificate of Need Section
Mar. Beth Johnston
Clav M. Custer
Li\ing Centers-Southeast. Inc.
Maureen DeMarest Murray
Susan M. Fradenbura
Lutheran Retirement Center- Wilmington Incorporated
William Shenton
Devin Partnership and De\in Health Care Associates. Stephen Dolan
L.L.C.
ISSUES
1. 'Whether Lutheran's Certificate of Need application failed to conform with N.C.G.S. §I31E- 183(a)(3) as a matter
of law because Lutheran failed to demonstrate a need for the adult care beds proposed in its Certificate of Need application.
2. Whether Lutheran"s Certificate of Need application failed to conform with N.C.G.S. §131E-183(a)(5) because
Lutheran failed to include an\ capital costs for the land on which it proposed to locate the facilit).
3. Whether Lutheran's Certificate of Need application failed to conform with 10 N.C.A.C. 3R .1 125(d) and (e) because
Lutheran failed to adequateh identify the location and suitabilit\ of its proposed priman.. secondarv'. and tertian.- sites.
UNDISPUTED MATERIAL FACTS
There are no genuine issues of material fact on the abo\e referenced issues, and the following undisputed facts support this
Recommended Decision:
\.
The 1997 State Medical Facilities Plan ("SMFP") identified the need for 110 additional nursing facilit\- beds for
1022
NORTH CAROLINA REGISTER
December IS, 1998
13:12
CONTESTED CASE DECISIONS
New Hanover County. New Hanover Center, Devin Partnership and Devin Health Care Associates, L.L.C. ("Devin"), Lutheran, and
Columbia Cape Fear Healthcare System, Limited Partnership ("Cape Fear"), along with certain other applicants not involved in these
contested cases, filed applications with the North Carolina Department of Health and Human Services, Division of Facility Services,
Certificate of Need Section ("CON Section") to receive a CON to develop nursing facility beds in New Hanover County, North
Carolina. Lutheran"s application also included a proposal to include 20 adult care home beds in the nursing facility.
2. In a letter dated January 28, 1998, the CON Section disapproved the applications of New Hanover Center, Cape
Fear, Living Centers and Lutheran and conditionally approved the application of Devin. In a letter dated February 4, 1998, the CON
Section transmitted to the parties a copy of the Required Agency Findings.
3. In its written findings dated February 4, 1998, the CON Section found that Lutheran's application was deficient and
failed to conform with, among other things, the statutory review criteria set forth in N.C.G.S. § 1 3 1 E-1 83(a)(3). Specifically, the CON
Section found that Lutheran's application failed to conform with N.C.G.S. §131E(a)(3) ("Criterion 3"), because Lutheran did not
demonstrate that there was a need for the 20 adult home care beds that Lutheran proposed to develop in New Hanover County. The
CON Section's decision to find Lutheran non-conforming with Criterion 3 was based in part on a moratorium that the General
Assembly had placed on the addition of adult care home beds in the State of North Carolina and in part on Lutheran's failure to
demonstrate that there was any need for additional adult home care beds in New Hanover County.
4. New Hanover Center, Living Centers, Cape Fear, and Lutheran filed Petitions for Contested Case Hearing to appeal
the CON Section's decisions to deny their respective applications. These cases were consolidated for hearing and each party was
granted permission to intervene in the other parties' contested cases.
5. New Hanover Center filed a Motion for Summary Judgment concerning the decision on Devin on the grounds that
Devin failed to demonstrate conformity with N.C.G.S. §131E-183(a)(5) ("Criterion 5") as a matter of law. This Court granted the
Motion and entered an Interlocutory Recommended Decision granting summary judgment concerning the decision on Devin. As a
result, this Court also ordered that no discovery would be conducted and no evidence admitted as to Devin's application.
6. The parties later reached an agreement pursuant to which Cape Fear withdrew its Petition for Contested Case
Hearing. Consequently, the applications that continue to be at issue in this contested case are those of New Hanover Center, Living
Centers, and Lutheran.
7. In its application, Lutheran proposed to include 20 adult care home beds as part of its 110 bed nursing home facility
in New Hanover County. In support of its proposal to include 20 adult care home beds as part of its nursing facility, Lutheran
submitted; (1) responses to a survey that it conducted showing that four out of eight health care providers believed that there was a
need for additional dementia adult care beds, and (2) a letter from the New Hanover County Department of Social Services which
indicated that the Department occasionally had difficulty in locating adult care home beds for residents with dementia. Lutheran
submitted no other information with its application which purported to demonstrate a need for additional home care beds in New
Hanover County.
8. At the time Lutheran's application was being reviewed, the vacancy rate for existing and approved adult care home
beds in New Hanover County was 46.49%. In addition, in August of 1997 (effective July 1, 1997) the North Carolina General
Assembly adopted Senate Bill 352 which placed a moratorium on the addition of any adult home care beds in North Carolina for a
12-month period because of the proliferation of unnecessary adult care home beds. On October 30, 1998, the North Carolina
legislature enacted Senate Bill 1366. Part of this bill addressed the restriction on the construction of adult care home beds. The bill
specifically provides that:
(d) This section [the section placing a moratorium on the development of aduh
care beds] shall not apply to adult care home beds which are part of a
continuing care facility subject to the jurisdiction of or licensed by the
Department of Insurance pursuant to Article 64, Chapter 58 of the North
Carolina General Statutes, or to adult care home beds which are part of an
application filed with the Department of Health and Human Services prior to
August 28. 1997 . or between July L 1998 and August 1, 1998, pursuant to
Article 9 of Chapter 13 IE of the North Carolina General Statutes.
Lutheran's application was filed with the Department pursuant to Article 9 of Chapter 1 3 1 E on August 1 5, 1 997.
9. In Section VIll of its application, Lutheran projects a total capital cost of $5, 145,045 for the project. The capital
13:12 NORTH CAROLINA REGISTER December 15, 1998 1023
CONTESTED CASE DECISIONS
costs included by Lutheran in Section VIII of its application do not include any capital costs associated with Lutheran's acquisition
of the land upon which Lutheran proposes to build its nursing facility. Lutheran contends that because it plans to conduct a land swap
to obtain the property on which it will locate the facility, there will be no costs associated with its acquisition of the land. Lutheran
also fails to include any expenses associated with the proposed land swap in its capital expenses in Section VIII.
10. Lutheran's primary and secondary sites set forth in its application would be acquired by exchanging one of these
sites for property that Lutheran already owns. Lutheran acquired part of this property that it already owns (its tertiary site on
Masonboro-Loop Road) through donation and part through purchase. In its pro forma balance sheet submitted with its application,
Lutheran uses a value of $956,600 for the land to be used for its proposed nursing home. If Lutheran had included the value of its
land in its capital expenses, it would have paid an application fee of $17,500. Because Lutheran did not include the value of the land
being swapped or any expenses associated with its proposed "land swap", it only paid an application fee of $15,935.
11. In its application. Lutheran identifies its proposed primary and secondary sites for the project only as five acres on
"Rose Avenue." Lutheran also includes the letter from UNC-Wilmington that relates to its proposed land swap, but this letter
indicates that the parties had not yet identified the specific property which Lutheran was to receive from UNC-Wilmington and on
which Lutheran was to locate its proposed facility.
12. Lutheran included in its application a letter from the New Hanover County Engineering Department that certifies
that Rose Avenue has sewer capabilities. Lutheran's application does not contain any information regarding the availability of water
and sewer service for Lutheran's tertiary site which was located on Masonboro-Loop Road.
CONCLUSIONS OF LAW
1 . Chapter 1 3 1 E. Article 9 of the North Carolina General Statutes set forth review procedures and standards applicable
to Certificate of Need applications. Certain statutory review criteria are specifically set forth in N.C.G.S. §131E-183(a), and an
applicant must meet these criteria before the CON Section may issue the applicant a Certificate of Need. See N.C.G.S. § 1 3 1 E-1 83(a);
see also Presbvterian-Orthopaedic Hospital v. Dept. of Human Resources, et al., 122 N.C. App. 529, 470 S.E.2d 831 (1996). Thus,
for a CON application to be approved, it must be found fully conforming to all applicable statutory and regulatory criteria. ("An
application must comply with all review criteria."); see also Retirement Villages. Inc. et al. v. Dept. of Human Resources, et al., 124
N.C. App. 495, 477 S.E.2d 697 (1996) ("Since we have determined that the applicants are each nonconforming to the statutory criteria
on at least one ground, we see no need to reach the remainder of the applicants' arguments.").
2. Summary Judgment in a contested case hearing regarding an application for a Certificate of Need is appropriate
when there is no genuine issue of material fact regarding an applicant's failure to comply with one of the statutory criterion or
regulations governing application for a Certificate of Need. Presbvterian-Orthopaedic Hospital y. Dept. of Human Resources, et al.
122 N.C. App. 529, 470 S.E.2d 83 1 (1996).
3. Statutory review Criterion 3 is found at N.C.G.S. §13IE-183(a)(3) and provides as follows:
The applicant shall identify the population to be served by the proposed project, and shall
demonstrate the need that this population has for the services proposed, and the extent to which
all residents of the area, and in particular, low income persons, racial and ethnic minorities,
women, handicapped persons, the elderly, and other underserved groups are likely to have access
to the services proposed.
4. At the time Lutheran submitted its application, the North Carolina General Assembly had adopted Senate Bill 352
which placed a moratorium on the addition of any adult care home beds in the State of North Carolina. Consequenth'. at the time of
its application. Lutheran was imable, as a matter of law, to demonstrate a need for additional adult care home beds in New Hanover
County.
5. Under Senate Bill 352, the Department of Health and Human Services had no authority to approve the addition of
any adult care home beds for any type of home or facility in North Carolina. Consequent!), at the time of the decision in January of
this year, the Agency had no authority to approve Lutheran's Certificate of Need application which included adult care home beds.
However, because the General AssembK' enacted Senate Bill 1366 on October 30, 1998, the statutorily-mandated moratorium is no
longer applicable to Lutheran's application. That issue is now moot.
6. However, even absent the moratorium placed on adult care home beds. Lutheran's application failed to document
that there was a need for additional adult care home beds in New Hanover Counfy. Lutheran included with its application the
following documents in support of its contention that there was a need for additional adult care home beds in New Hanover County:
1024 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
(1) the results of a survey that it conducted showing that four out of eight health care providers in New Hanover County felt that there
was a need for additional adult care beds; and (2) a letter from the New Hanover Department of Social Services indicating that the
Department occasionally had difficulty in locating adult care home beds for residents suffering fi-om dementia. The information
provided by Lutheran, however, falls far short of establishing that there was a need for additional adult care home beds in New
Hanover County.
7. The insufficiency of the information included with Lutheran's application is further evidenced by the fact that, at
the time Lutheran's application was being reviewed, there was a 46.49% vacancy rate for adult care home beds in New Hanover
County. The CON Section correctly determined that Lutheran's application failed to conform with Criterion 3.
8. Even if the CON Section has no authority to regulate the provision of new adult care home beds, when those beds
are proposed with a project for nursing home beds, the addition of the adult care home beds can impact the overall financial feasibility
of the total project. Therefore, the CON Section correctly analyzed the need for the adult care home beds pursuant to N.C.G.S.
§ 13 lE-1 83(a)(3).
9. Statutory Review Criterion 5 ("Criterion 5"), N.C.G.S. §131E-183(a)(5), provides as follows:
Financial and operational projections for the project shall demonstrate the availability of funds
for capital and operating needs as well as the immediate and long-term financial feasibility of the
proposal based upon reasonable projections of the costs of and charges for providing health
services by the person proposing the services.
10. In its application, Lutheran failed to include any costs which would be associated with its acquisition of the land
on which it proposed to locate the facility. Lutheran contends that it was not required to include such costs in its application because
it would not incur any costs in its proposed land swap with UNC- Wilmington.
1 1 . Lutheran's proposed land swap with UNC- Wilmington would, however, involve Lutheran exchanging something
of value, the land which it already owned, for the land on which it proposed to locate its site. Thus, the value of the land which
Lutheran was providing to UNC- Wilmington would be a cost for Lutheran, and should have been included as a capital cost in its
application.
12. Furthermore, even assuming arguendo , that relinquishing title to land that it already owned as part of its land swap
with UNC- Wilmington would not constitute a capital cost, Lutheran's failure to include in its application any of the other costs, legal
fees and expenses which would necessarily be incurred as part of its proposed land swap was unreasonable. Therefore, Lutheran's
application was not "based upon reasonable projections of [ ] costs . . ." as required by Criterion 5, and Lutheran's application can
not be approved as a matter of law.
13. Lutheran's failure to include the value of land and all costs associated with the proposed land swap resulted in
Lutheran failing to pay the proper filing fee with its application. 10 N.C.A.C. 3R.0305 states that an application shall not be reviewed
by the Agency unless it is filed in accordance with the rule which specifies that each applicant must transmit a filing fee calculated
based upon its proposed capital expenditure. Lutheran's failure to pay the appropriate filing fee resulted in an incomplete application
which should not have been reviewed by the CON Section.
14. 10 N.C.A.C. 3R.1 125(d) requires that, in conjunction with an application for a Certificate of Need, "an applicant
proposing to establish new nursing facility beds shall specify the site on which the facility will be located." Lutheran's application,
however, fails to adequately identify the locations of its primary and secondary sites.
15. In Sections XI. 2 and XI.3 of the application, Lutheran identifies its primary and secondary sites for the facility only
as five acres on "Rose Avenue." Such a vague identification of the proposed site for its nursing facility is not sufficient to meet the
requirements of 10 N.C.A.C. 3R.1 125(d), and Lutheran's failure to comply with this regulatory criteria means that Lutheran's
application is not approvable as a matter of law. See Presbyterian-Orthopaedic Hospital y, Dept. Of Human Resources, et al., 122
N.C. App. 529, 470 S.E.2d 831 (1996).
16. 10 N.C.A.C. 3R.1 125(e) requires that:
An applicant proposing to establish new nursing facility beds shall document that the proposed
site and alternative sites are suitable for the development of a nursing facility with regards to
water, sewage disposal . . .
13:12 NORTH CAROLINA REGISTER December 15, 1998 1025
CONTESTED CASE DECISIONS
1 7. With respect to its primary and secondary sites, Lutheran's application includes a letter from the New Hanover
County Engineering Department which does not reference the specific location of Lutheran's proposed site, but states only that "Rose
Avenue (in the vicinity of UNC-W)" has sewer capabilities. There is no information whatsoever in Lutheran's application which
indicates that water and sewer service is available at Lutheran's proposed tertiary site location on Masonboro-Loop Road.
Consequently, Lutheran's application does not provide the necessary documentation showing that its proposed site and alternative
sites have appropriate water and sewer capabilities as required by 10 N.C.A.C. 3R. 1125(e), and Lutheran's application is not
approvable as a matter of law. See Presbyterian-Orthopaedic Hospital v. Dept. Of Human Resources, et al.. 122 N.C. App. 529, 470
S.E.2d831 (1996).
RECOMMENDED DECISION
It is hereby recommended that the Motions for Summary Judgment as to Lutheran's Certificate of Need application be
GRANTED, and that a decision be entered that Lutheran cannot be issued a Certificate of Need.
III. RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT CONCERNING
THE DECISION ON LIVING CENTERS-SOUTHEAST, INC.
This matter came on for hearing before the undersigned Administrative Law Judge on September 18,1 998 in 98-DHR-0244,
98-DHR-0245. and 98-DHR-0247 upon motions by Petitioners New Hanover Health Care Center, L.L.C. ("New Hanover Center")
and Lutheran Retirement Center- Wilmington, Inc. ("Lutheran") and Respondent-lntervenors The Devin Partnership and Devin Health
Care Associates LLC ("Devin") for an order recommending Summary Judgment regarding the decision on Living Centers-Southeast,
Inc. ("Living Centers").
ISSUES
1. Whether Living Centers' Certificate of Need application failed to conform with N.C.G.S. §131E-183(a)(5) as a
matter of law because Living Centers failed to include any interest expense in its financial projections.
2. Whether Living Centers' Certificate of Need application failed to conform with N.C.G.S. § 13 lE-1 83(a)(5) as a
matter of law because Living Centers failed to document that sufficient funds were available and committed to the project.
3. Whether the change in control over the Living Centers' project, without disclosing the effect of this planned change
in control in the Living Centers' application, constituted an impermissible amendment of the Living Centers' application.
UNDISPUTED MATERIAL FACTS
As described below, there are no genuine issues of material fact with respect to the above referenced issues:
1. The 1997 State Medical Facilities Plan ("SMFP") identified the need for 110 additional nursing facilit>' beds for
New Hanover Count)'. New Hanover Center. Devin Partnership and Devin Healthcare Associates. L.L.C. ("Devin"), Columbia Cape
Fear Health Care Systems Limited Partnership ("Cape Fear"), and Lutheran, along with certain other applicants not involved in these
contested cases, filed applications with the North Carolina Department of Health and Human Services. Division of Facility Services,
Certificate of Need Section ("CON Section") to receive a CON to develop nursing facility beds in New Hanover County, North
Carolina.
2. In a letter dated January 28, 1998, the CON Section disapproved the applications of New Hanover Center, Cape
Fear. Living Centers and Lutheran and conditionally approved the application of Devin. In a letter dated Februar> 4. 1998, the CON
Section transmitted to the parties a copy of the Required Agency Findings.
3. New Hanover Center. Living Centers, Cape Fear and Lutheran filed Petitions for Contested Case Hearing to appeal
the CON Section's decisions to deny their respective applications. These cases were consolidated for hearing and each party was
granted permission to intervene in the other parties' contested cases.
4. New Hanover Center filed a Motion for Summary Judgment concerning the decision on Devin on the grounds that
Devin failed to demonstrate conformity with Criterion 5 as a matter of law. This Court granted the Motion and entered an
Interlocutor) Recommended Decision granting summarv judgment concerning the decision on Devin.
5. The parties later reached an agreement pursuant to which Cape Fear withdrew its Petition for Contested Case
1026 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
Hearing. Consequently, the applications that continue to be at issue in this contested case are those of New Hanover Center, Living
Centers, and Lutheran.
6. In its application. Living Centers represents that it will fimd $3.75 million in capital costs for the project with "cash
on hand." The application also represents that approximately $250,000 in working capital will be funded with cash. According to
the President of Living Centers, "cash" means money from the parent company, from whatever source. Living Centers has no cash
and no bank accounts.
7. The application of Living Centers contains no separate financial statements from Living Centers-Southeast, Inc.
Instead, the application only contains: (a) consolidated financial statements from Living Centers of America, Inc., the parent company
of Living Centers-Southeast, Inc. at the time the application was filed, and (b) a certificate from an officer of Living Centers of
America which indicates that Living Centers of America would fund the project with the "more than $650 million in credit facilities"
it has available. The financial statements of Living Centers of America that were included with Living Centers' application disclosed
that Living Centers of America paid $19.3 million in interest on long-term debt in 1996.
8. Even though the Living Centers' application represents that it intends to ftind the project with $650 million of
available credit from Living Centers of America and that Living Centers of America paid $19.3 million in interest on long-term debt
in 1996, Living Centers failed to include any interest expense in the fmancial pro formas included in its application.
9. In November of 1997, Living Centers of America, Inc. recapitalized and merged with Apollo Management, L.P.
and GranCare. The merger of the companies resulted in the formation of a new company named Paragon Health Network, Inc.
("Paragon"). At the time Living Centers submitted its Certificate of Need application. Living Centers knew that Living Centers of
America, Inc. was recapitalizing and merging with Apollo Management, L.P. ("Apollo"), and merging with GranCare. Living Centers'
application did not, however, provide any financial information on Apollo Management or GranCare, nor did Living Centers'
application contain evidence of a commitment by Paragon, Apollo or GranCare to fund the project.
10. In addition, after the recapitalization and merger, ownership and control of Living Centers' CON application
substantially changed. According to Paragon's September 1 997 SEC filing, the former Living Centers of America stockholders held
only 14.1% of Paragon's stock after the recapitalization and merger, and Apollo obtained control of the Board of Directors of Paragon.
There was no disclosure in Living Centers' application of the effect of this planned change of confrol on Living Centers' proposed
project.
CONCLUSIONS OF LAW
1. Chapter 13 IE, Article 9 of the North Carolina General Statutes sets forth review procedures and standards
applicable to Certificate of Need applications. Certain statutory review criteria are specifically set forth in N.C.G.S. §131E-183(a),
and an applicant must meet these criteria before the CON Section may issue the applicant a Certificate of Need. See N.C.G.S.
§13 IE- 183(a); see also Presbyterian-Orthopaedic Hospital v. Dept. of Human Resources, et al., 122 N.C. App. 529, 470 S.E.2d 831
(1996). Thus, for a CON application to be approved, it must be found fully conforming to all applicable statutory and regulatory
criteria. ("An application must comply with al] review criteria."); see also. Retirement Villages. Inc. et aL y, Dept. of Human
Resources, et al, 1 24 N.C. App. 495, 477 S.E.2d 697 ( 1 996) ("Since we have determined that the applicants are each nonconforming
to the statutory criteria on at least one ground, we see no need to reach the remainder of the applicants' arguments.").
2. Summary Judgment in a contested case hearing regarding an application for a Certificate of Need is appropriate
when there is no genuine issue of material fact regarding an applicant's failure to comply with one of the statutory criterion or
regulations governing application for a Certificate of Need. Presbyterian-Orthopaedic Hospital v. Dept. of Human Resources, et al.,
122 N.C. App. 529,470 S.E.2d 831 (1996).
3. Statutory review Criterion 5 ("Criterion 5") is found at N.C.G.S. §131E-183(a)(5) and provides as follows:
Financial and operational projections for the project shall demonsfrate the availability of funds
for capital and operating needs as well as the immediate and long-term financial feasibility of the
proposal, based upon reasonable projections of the costs of and charges for providing health
services by the person proposing the services.
4. Thus, pursuant to Criterion 5, an applicant must show that a project is financially feasible. In addition, the North
Carolina Court of Appeals held in Retirement Villages v. Dept. of Human Resources . 124 N.C. App. 495,477 S.E.2d697 (1996) that
Criterion 5 also requires that an applicant show that: ( 1 ) sufficient fiinds are available to meet the fmancial requirements of the project;
13:12 NORTH CAROLINA REGISTER December 15, 1998 1027
CONTESTED CASE DECISIONS
and (2) the persons or entities that are funding the project have committed those funds to the proposed project.
5. The source of funding for Living Centers' proposed project was through Living Centers' parent corporation, Living
Centers of America. Inc. According to the 1996 Annual Report of Living centers of America, Living Centers of America carried
$263 million of long-term debt on its balance sheet and paid interest expense of almost $20 million. Furthermore, Living Centers
of America's Annual Report shows that it borrowed amounts equal to 55% of its assets, thus giving Living Centers of America a 55%
debt to asset ratio.
6. Despite the fact that the funding entity- for the project. Living Centers of America, paid approximately $20 million
in interest in 1996, Living Centers failed to include any interest expense in its financial projections. This at least raises an issue of
fact as to whether Living Centers should have included interest expense in its financial projections since it represented that its parent
company planned to use debt financing for the project.
7. If Living Centers had included interest expense in its application. Living Centers' proposal would show losses in
each of the first three operating years . Specifically, using the same 55% debt to asset ratio shown in Living Centers of America's
financial statement. Living Centers would have incurred in an annual interest expense for the project for the first few years of over
$160,000. The addition of this interest expense to Living Centers' financial projections results in Living Centers' showing a loss in
each of its first three years of operation. Consequently, if interest expense had been included. Living Centers' proposed project could
not be financially feasible as required by Criterion 5.
8. In applying Criterion 5, the North Carolina Court of Appeals has held that:
[Criterion 5] requires the Agency to determine the availability of funds for the project from the
entity responsible for funding, which may or may not be an applicant.
The application must [also] contain evidence of a commitment to provide funds by the funding
entity. We hold that without such a commitment, an applicant cannot adequately demonstrate
availability of funds or the requisite financial feasibility.
Retirement Villages y, Dept. of Human Resources , 124 N.C. App. 495. 499 477 S.E.2d 697 (1996).
9. Living Centers' application for a CON in this case fails to meet the requirements set forth in Retirement Villages .
In its application for a CON, Living Centers relies upon its parent company, Living Centers of America, to finance the proposed
development of the 1 10 bed nursing facilitv'. However, prior to submitting the Living Centers' application. Living Centers of America
announced that it was undergoing a recapitalization and merger with Apollo and GranCare, Inc. As a result of the recapitalization
and merger. Living Centers of America ceased to exist and no longer had flinds available with which to fund the project.
10. The Living Centers' application, however, contains no financial information from Apollo or GranCare, nor does
it contain evidence of a commitment from Apollo or GranCare to fund the Living Centers' project. Absent such evidence of
availability and commitment from Apollo and GranCare, whose shareholders were to comprise over 85% of the ownership of the
parent of Living Centers, Living Centers' application fails to provide evidence of the availability and commitment "to provide the
funds by the funding entity" as required by Criterion 5. Retirement Villages . 124 N.C. App. 499. Because of this deficiency, Living
Centers' application does not comply with Criterion 5.
11. In addition. Living Centers cannot now provide information which indicates that Paragon. Apollo or GranCare has
sufficient funds available for the project and that such funds are committed to the project because this would constitute an
impermissible amendment to Living Centers' application. See 10 N.C.A.C. 3R.0306; see also Presbyterian-Orthopaedic Hospital ,
122 N.C. App. 527. 420 S.E.2d 837 (1996).
12. As discussed above, in November of 1997, Living Centers of America. Inc. recapitalized and merged with Apollo
and GranCare and formed a new company named Paragon. After the recapitalization and merger, the former Living Centers of
America stockholders held only 14.1°/o of the stock of Paragon, and Apollo controlled the Board of Directors of Paragon.
13. Under the Certificate of Need regulations, "[cjontrol of a Certificate of Need is transferred when an\' person
acquires a majority interest in the facilit>. project or holder or any parent entity of the facilit>'. project or holder." 10 N.C.A.C.
3R.03 17(c). Furthermore, under the Certificate of Need law, the Department of Health and Human Services is authorized to
1028 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
>
immediately withdraw any Certificate of Need "if the holder of the certificate, before completion of the project or operation of the
facility, transfers ownership or control of the facility, the project, or the Certificate of Need." N.C.G.S. §13 IE- 189(c). However,
the Certificate of Need law also provides that "[tjransfers resulting from death or personal illness or other good cause, as determined
by the Department, shall not result in withdrawal if the Department receives prior written notice of the transfer and finds good cause."
14. The transfer or assignment of Certificates of Need outside the procedures outlined in N.C.G.S. §131E-189(c) is
strictly prohibited. N.C.G.S. §131E-181(a). Living Centers did not have a Certificate of Need for its proposed project in New
Hanover County at the time of the Apollo/GranCare recapitalization and merger. Consequently, the Department does not have a
Certificate of Need that it can withdraw from Living Centers. However, the effect of the change in control of Living Centers' project
after the review began, with no disclosure of the effect of this planned change of control in the CON application, results in an
impermissible amendment of Living Centers' application. See Presbyterian-Orthopaedic Hospital, 122 N.C. App. 527, 420 S.E.2d
837(1996).
RECOMMENDED DECISION
It is hereby recommended that the Motions for Summary Judgment as to Living Centers' Certificate of Need application be
GRANTED, and that a decision be entered that Living Centers cannot be issued a Certificate of Need.
IV RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT
AGAINST NEW HANOVER HEALTH CARE CENTER. L.L.C.
ISSUES
A. Is New Hanover Center's Application nonconforming with Criterion Five because it did not sufficiently document
the availability and commitment of funds?
B. Is New Hanover Center's Application not financially feasible and nonconforming with N.C. Gen. Stat.
§13 lE-1 83(a)(5) because it contained umeasonable projections of Medicare and Medicaid revenues?
C. Is New Hanover Center's Application nonconforming with N.C. Gen. Stat. § 1 3 1 E-1 83(a)(13)(c) ("Criterion 1 3(c)")
because it projected access for skilled care to Medicaid patients at below the Statewide and County Averages?
UNDISPUTED MATERIAL FACTS
A. AVAILABILITY AND COMMITMENT OF FUNDS
1 . In support of its findings that New Hanover Center adequately demonstrated the availability and commitment of
funding for the development of its project under Criterion Five, the CON Section found:
In Application Section VIII, page 64, New Hanover Health Care Center projects a total capital
expenditure of $4,028,438 of which $2,620,438 is for construction. On page 65, New Hanover
Health Care Center proposes to obtain a conventional loan to finance $2,104,000 with the
remaining capital expenditures of $2,014,438 proposed to be financed with owner=s equity. In
Sec. IX., page 68, the applicant projects start-up and initial operating expenses of $1,325,000.
The applicant states that cash flows from the facility's operations will fund $1,025,000 with the
remaining $300,000 in working capital needs to be fimded from a line of credit with Central
Fidelity Bank of Virginia.
. . . Application Exhibit 15 also contains a July 14. 1997 letter from Central Fidelity National
Bank of Roanoke, Virginia, which states that a $1,000,000 line of credit has been established
with James R. Smith, and that there is no current balance, fiarther [sic], the bank expects that the
line of credit will probably be renewed for another year upon its expiration on September 30,
1997.
(Agency Decision at 786).
a. Capital Expenses
13:12 NORTH CAROLINA REGISTER December 15, 1998 1029
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CONTESTED CASE DECISIONS
2. In its application to construct and operate a 110-bed nursing facility in New Hanover County. Project I.D.
#0-5674-97, New Hanover Center projected a total capital expenditure of $4,028,438. (New Hanover Center Application at 64).
3. New Hanover Center proposed to finance this capita! expenditure as follows:
$2,014,000 Conventional loan
$2,014.438 Owner=s equity contribution by James R. Smith
$4,028,438
(New Hanover Center Application at 65-67).
4. Documentation of the availability of the owner's equity consisted of Mr. Smith's imaudited financial statements.
(New Hanover Center Application. Ex. 15 at 380).
5. Mr Smith's financial statements showed:
Current Assets: $ 664.807 Cash - business account
Sl.578.410 Cash - project related
$2,243,217
(New Hanover Center Application. Ex. 15 at 382).
6. The Analyst relied on this $ 2.243.217 in cash as documenting cash available to be contributed to the project.
(Slaton Dep. Vol. 1 at 145-146).
7. "Cash-project related" indicates that the cash has been committed to other projects in which Mr. Smith is involved.
(Clary Dep. at 40).
8. New Hanover Center's application showed that Mr Smith, 99% owner of New Hanover Center, had three other
CON applications pending in North Carolina at the time of the review of the New Hanover application with projected equity
contributions from Mr Smith in the amount of $4,573,153. (New Hanover Center Application at 67).
9. Mr. Smith's fmancial statements also showed Mr. Smith as having four certificate of need projects pending approval
or with development in progress with Mr. Smith having a 50% or 100% ownership in each. (New Hanover Center Application, Ex.
15 at 385).
10. With the project related cash on Mr. Smith's financial statements in the amoimt of $1,578,410 not available to this
project, Mr Smith only has available $664,807 to contribute to his equity interest in the project.
1 1 . This leaves a shortfall of $1,349,631 of the total capital costs projected to be funded by an equity contribution from
Mr Smith.
b. Start-Up and Initial Operating Costs
12. New Hanover Center projected a total working capital expenditure of $1,325,000, consisting of estimated start-up
expenses of $75,000 and estimated initial operating expenses of $1,250,000. (New Hanover Center Application at 68).
13. New Hanover Center proposed to finance these start-up and initial operating expenses as follows:
$1,025,000 Operating revenue from the facility
$ 300.000 Mr Smith's $ 1 ,000,000 personal line of credit with Central Fidelity Bank
$1,325,000
(New Hanover Center Application at 68-69).
14. New Hanover Center included in its application a Januar\' 15. 1997 letter from Central Fidelity Bank of Virginia
stating that James R. Smith had a personal line of credit with the Bank in the amount of $1,000,000. (New Hanover Center
Application. Ex. 15 at 374-77: Slaton Dep. Vol. I at 146-47).
15. According to the Bank letter's express terms, the lineof credit expired September 30. 1997. (New Hanover Center
1030 NORTH CAROLINA REGISTER December IS, 1998 13:12
CONTESTED CASE DECISIONS
Application, Ex. 15 at 374; Slaton Dep. Vol. Ill at 167).
1 6. A July 1 4, 1 997 letter from Central Fidelity Bank confirmed that the line of credit would expire on September 30,
1997 but could potentially be renewed through September 30, 1998. (New Hanover Center Application, Ex. 15 at 378).
* 17. Even if the line of credit was renewed through September 30, 1 998, it still would have lapsed more than nine months
before July 15, 1999, the date on which New Hanover Center projected to open its facility. (New Hanover Center Application at 92).
1 8. Nothing in the Application documented that the line of credit would be available during the start-up and opening
phase of the facility.
1 9. The CON Section relied in part on the line of credit to determine that New Hanover Center conformed to Criterion
Five. (Slaton Dep. Vol. 1 at 148).
20. Operating revenue of $1,025,000 was to be used to fund start-up and initial operating expenses. (New Hanover
Center Application at 68).
2 1 . New Hanover Center projected net cash provided by operating activity in year one at a loss of $202,356, a year two
profit of $242,773 and a year three profit of $329,896. (New Hanover Center Application at 133).
22. Calculated over three years, this totals $370,3 13 in net cash provided by operating activities.
23. Based on its net cash projections. New Hanover Center will actually not be able to cover at least $654,687 of the
projected $1,025,000 of its start-up and initial operating expenses that were projected to be covered by operating revenue. (New
Hanover Center Application at 68).
24. Alternatively, New Hanover Center's cash flow projections by quarter showed a cumulative cash flow by the end
ofyear two of $257,310. (New Hanover Center Application at 71).
25. Based on its cash flow projections New Hanover Center will not be able to cover $767,690 of the projected
$1,025,000 of its start-up and initial operating expenses that were projected to be covered by operating revenue. (Nev\ Hanover
Center Application at 68).
26. The total funds needed for capital expenditure and working capital expenditure are:
$4,028,438 Total capital expenditure
$1.325.000 Total working capital expenditure
$5,353,438 Total funds needed
27. Even if all of Mr Smith=s cash was available to pay for capital expenditures and there was operating revenue of
$1,025,000, without the line of credit, New Hanover would still be $71,221 short of funds needed.
B. MEDICARE AND MEDICAID PROJECTED REIMBURSEMENT
28. Medicare will only reimburse a nursing facility its costs. (Clary Dep. at 26, 31).
29. In year two. New Hanover Center projected total Medicare days of 4468. (New Hanover Center Application at 43).
30. In year two. New Hanover Center also projected a Medicare charge of $152 per day. (New Hanover Center
Application at 77).
31. New Hanover Center's total reimbursable cost per patient day for skilled nursing care, the only type of care
reimbursed by Medicare, was $1 10.44. (New Hanover Center Application at 112).
32. The difference between New Hanover's proposed Medicare charge and its total reimbursable skilled nursing costs
is $41.56.
33. This difference of $41.56 multiplied by the total number of Medicare days, 4468. results in overstated Medicare
13:12 NORTH CAROLINA REGISTER December 15, 1998 1031
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CONTESTED CASE DECISIONS
revenue in the amount of $ 1 85,690.
34. Medicaid reimbursement for the total indirect cost component is estabhshed by the Division of Medical Assistance,
North Carolina Department of Health and Human Services, and is a flat amount paid to all facilities regardless of actual indirect costs
incurred. (Slaton Dep. Vol. Ill at 141).
35. If the facility projects total indirect costs in excess of the anticipated Medicaid indirect costs, the facility will incur
a loss under the Medicaid program. (Slaton Dep. Vol. Ill at 141-144; Lane Dep. at 144).
36. In its application. New Hanover Center projected a total indirect cost per patient day in year two of $24.27. (New
Hanover Center Application at 1 12; Agency File at 668).
37. The Medicaid total indirect rate per patient day expected in year two is $22.10. (Slaton Dep. Vol. Ill at 141; Agency
File at 651).
38. The difference between New Hanover Center's total indirect costs per patient day and the Medicaid indirect rate
in year two is $2.17 per patient day. This represents a loss of $2.17 per patient day.
39. New Hanover Center's total projected Medicaid days in year two are 29,044. (New Hanover Center Application
at 43; Agency File at 628).
40. The total Medicaid days multiplied by the projected loss per patient day results in a total expected Medicaid revenue
shortfall of $63, 025.
41. New Hanover Center projected a profit in year two of $168,940. (New Hanover Center Application at 99).
42. Deducting the overstated Medicare revenue of $ 1 85,690 and the overstated Medicaid revenue of $63,025 from the
profit of $ 1 68,939 results instead in a loss of $79,776 in year two.
43. The CON Section considers a project to not be fmancially feasible if an application projects a loss in year two.
(Slaton Dep. Vol. Ill at 147).
C. ACCESS BY UNDERSERVED
44. The Agency found New Hanover Center's Application nonconforming with Criterion (13)(c) on the basis that it
did not provide sufficient access to Medicaid patients who would need skilled care. (Agency Decision at 817).
45. New Hanover Center projected it would provide 53.2% skilled care days to Medicaid eligible patients. (New
Hanover Application at 485; Agency Decision at 817).
46. According to the 1996 DMA Desk Audited Cost Report Information 61.6% of skilled care days were provided to
patients eligible for Medicaid in all New Hanover County nursing facilities. (Slaton Dep. Vol I at 171; Agency Decision at 817).
47. According to the 1996 DMA Desk Audited Cost Report Information 65.1% of skilled care days were provided to
patients eligible for Medicaid in all North Carolina nursing facilities. (Slaton Dep. Vol. 1 at 171; Agency Decision at 817).
48. New Hanover Center projected Medicaid skilled patient days that were 8.4% lower than the New Hanover County
average and 1 1.9% lower than the State average. (Agency Decision at 818).
CONCLUSIONS OF LAW
A. NEW HANOVER CENTER DID NOT DOCUMENT THE AVAILABILITY OF SUFFICIENT FUNDS TO COVER
CAPITAL AND WORKING CAPITAL NEEDS AND THEREFORE IS NONCONFORMING WITH CRITERION FIVE.
1. Criterion Five provides:
Financial and operational projections for the project shall demonstrate the availability of funds
for capital and operating needs as well as the immediate and long term financial feasibility of the
1032 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
proposal based upon reasonable projections of the costs of and charges for providing health
services by the person proposing the service.
N.C. Gen. Stat. §13 IE- 183(a)(5).
2. Criterion Five requires an applicant to demonstrate the availability and commitment of sufficient funds for the
project or its application is not approvable. Retirement Villages v^ Dept. of Human Resources . 124 N.C. App. 495, 477 S.E.2d 697
(1996).
3. The Agency erred in concluding that New Hanover Center's Application demonstrated that it has sufficient funds
available to cover the project's capital start-up and initial operating costs.
4. "Cash-project related" on Mr. Smith's fmancial statements meant that cash was not available and committed to this
project but was restricted and committed to other projects.
5. On its face. New Hanover Center's Application only documented that Mr. Smith had available and committed to
the project cash equity of $664,807 rather than the $2,014,438 needed for the project.
6. The Agency erroneously relied upon Mr. Smith's personal $1,000,000 line of credit as being available to fund
working capital needs, since on the face of the Application the line of credit would expire more than nine months before the start-up
and initial operating expenses would be incurred.
7. Without the line of credit New Hanover Center failed to document the availability and commitment of $300,000
needed for start-up and initial operating expenses.
8. The Agency erred in concluding that New Hanover Center had sufficient funds available and committed to fmance
working capital needs because its Application failed to demonstrate the availability of sufficient funds from operating revenues.
9. Considering the lack of the line of credit and a shortfall of up to $767,690.00 in operating revenues, there is a
shortfall of $1,067,690 in funds to cover operating costs.
B. NEW HANOVER CENTER'S APPLICATION IS NOT FINANCIALLY FEASIBLE AND IS NONCONFORMING
WITH CRITERION FIVE BECAUSE IT DOES NOT CONTAIN REASONABLE PROJECTIONS OF MEDICARE AND
MEDICAID REVENUE.
10. The Agency erred in concluding that New Hanover Center projected reasonable charges and should have found its
Application nonconforming with Criterion Five because New Hanover Center projected a Medicare charge that excluded its Medicare
costs by $41 .56 per day.
11. The Agency erred in failing to conclude that New Hanover Center projected unreasonable costs and was
nonconforming with Criterion Five because New Hanover Center projected Medicaid indirect costs per patient day of $24.27
compared to an expected Medicaid indirect rate per patient day of $22. 10.
12. The Agency erred in failing to conclude that New Hanover Center's Application was not financially feasible and
nonconforming with Criterion Five because its overstated Medicare and Medicaid revenues result in the project generating a loss in
year two.
C. NEW HANOVER CENTER'S FAILURE TO PROVIDE SUFFICIENT ACCESS TO SKILLED CARE MEDICAID
PATIENTS MAKES IT NONCONFORMING WITH CRITERION 13(C).
13. Criterion 13(c) provides:
The applicant shall demonstrate the contribution of the proposed service in meeting the
health-related needs of the elderly and of members of medically underserved groups, such as
medically indigent or low income persons. Medicaid and Medicare recipients, racial and ethic
minorities, women, and handicapped persons, which have traditionally experienced difficulties
in obtaining equal access to the proposed services, particularly those needs identified in the State
Health Plan as deserving of priority. For the purpose of determining the extent to which the
13:12 NORTH CAROLINA REGISTER December 15, 1998 1033
i i niMi aH inB i miMiiiu i a » aaii i !»nuiiii]jmmMiiia i8Bniiii
CONTESTED CASE DECISIONS
proposed service will be accessible, the applicant shall show:
(c) That the elderly and medically underserved groups identified in this
subdivision will be served by the applicant's proposed services and
the extent to which each of these groups is expected to utilize the
proposed services . . .
N.C. Gen. Stat. §131E-183(a)(13)(c).
14. Criterion 13(c) requires an applicant to demonstrate that it will provide sufficient access to Medicaid patients as
a group and not only to Medicare and Medicaid patients combined.
15. The Agency reasonably determined that to satisfy Criterion 1 3(c) an applicant must project that it will serve at least
the average percentage of Medicaid patients served by existing facilities in New Hanover County and the State.
16. The Agency correctly concluded that New Hanover Center's Application failed to conform with Criterion 13(c),
because its projection of access to skilled Medicaid patients was 8.4% lower than the county average and 1 1 .9% lower than the state
average.
17. Applicants had notice of the Agency's interpretation of Criterion 13(c) as a result of prior nursing home decisions.
See 1997 Burke County Decision, June 27, 1997; 1997 Johnston County Decision, July 28, 1997; 1997 Iredell County Decision,
August 28. 1997.
18. New Hanover Center's projection of providing service to skilled care Medicaid patients at a rate 8.4% lower than
the county average and 11.9% lower than the state average makes it nonconforming with Criterion 13(c) because it does not
sufficiently document that this medically underserved group will have sufficient access to service.
RECOMMENDED DECISION
It is hereby recommended that the Motions for Summarv' Judgment against New Hanover be GRANTED and that a decision
be entered that New Hanover not be issued a CON.
OFFER OF PROOF
Petitioner New Hanover Health Care Center, L.L.C. submitted an Offer of Proof to be included in the Official Record. An
Objection and Motion to Strike was filed by Living Centers of America. The documents shall be filed as an Offer of Proof to be
included in the Official Record.
NOTICE
The Agency making the final decision in this contested case will be required to give each party an opportunity to file
exceptions to this Recommended Decision and to present written arguments to those in the Agency who will make the final decision.
N.C.G.S. §150B-36(a).
The Agency is required by N.C.G.S. §150B-36(b) to serve a copy of the final agency decision on all parties to fiomish a copy
to the parties' attorney of record and to the Office of Administrative Hearings. The Agency that will make the final decision in this
contested case is the North Carolina Department of Health and Human Services, Division of Facility Services.
This the 24th dav of November. 1998.
Meg Scott Phipps
Administrative Law Judge
1034 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
98 ELS 0047
THOMAS A. TRULOVE, JR., PE
Petitioner,
V.
NC BOARD OF EXAMINERS FOR ENGINEERS
AND SURVEYORS
Respondent.
PROPOSAL FOR DECISION
This contested case was heard before the undersigned Chief Administrative Law Judge on September 28, 1998, in the Office
of Administrative Hearings, Raleigh, North Carolina.
For Petitioner:
For Respondent:
APPEARANCES
Thomas A. Trulove, Jr.
3601 Regents Park Lane
Greensboro, North Carolina 27455
Petitioner - pro se
David S. Tuttle
Board Counsel
North Carolina Board of Examiners for
Engineers and Surveyors
3620 Six Forks Road. Suite 300
Raleigh. North Carolina 27609
Attorney for Respondent
ISSUES
Whether or not Petitioner was guilty of gross negligence, misconduct or incompetence in the practice of engineering in the
preparation of plans entitled "ME ADO WOOD GLEN CONDO'S", dated 10/31/95 by:
1 . affixing his seal to inadequate design documents and failing to conduct his practice in order to protect the public
health, safety and welfare [21 NCAC 56 .0701(b)]
2. affixing his signature and seal to engineering documents dealing with subject matter for which he lacks competence
by virtue of education or experience [21 NCAC 56 .0701(c)(3)];
3. affixing his seal to work not done under his direct supervisory control or responsible charge [21 NCAC 56
.0701(c)(3), and
4. failing to properly sign, seal and date documents [21 NCAC 56 .1103], and for a determination of the disciplinary
measures, if any.
STATUTES AND RULES IN ISSUE
North Carolina General Statute 89C-20, 21 and 22
North Carolina Administrative Code Title 21. Chapter 56 (Board Rules)
Based upon the evidence presented and the entire record in this proceeding, the undersigned makes the following:
FINDINGS OF FACT
13:12
NORTH CAROLINA REGISTER
December 15, 1998
1035
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CONTESTED CASE DECISIONS
1 . The Office of Administrative Hearings has jurisdiction of this contested case pursuant to Chapters 89C and 150B
of the North Carolina General Statutes.
2. At all times, the Petitioner was a resident of Greensboro, North Carolina. The Petitioner was duly licensed by the
Respondent as a Professional Engineer, but Petitioner's license was not renewed for the calendar year 1998, and he has not practiced
engineering since January 1, 1998, because his license was not properly renewed. Previously, Petitioner's license was not renewed
for the remainder of the year 1997.
3. The Respondent is a professional licensing board created under Chapter 89C of the General Statutes of North
Carolina with its principal office in Wake County, North Carolina.
4. The City of Greensboro Building Inspections Department reviewed a set of design drawings entitled, "Meadowood
Glen Condo's by Pierce-Roif Corp., Greensboro, N.C.," dated October 31, 1995, on or about January 26, 1996. The plans were
rejected for failing to have a professional seal and for code violations. The Inspections Department faxed comments to Howard
Thompson.
5. The Meadowood Glen drawings were resubmitted on or about June 24, 1 996. The permit application listed Howard
Thompson as the "Design Professional", but the drawings bore the seal and signature of the Petitioner. The drawings were again
rejected because Petitioner's engineering seal had been expired since January 1 , 1996 and was not renewed until April 4. 1997. The
plans examiner who conducted the reviews of the drawings conversed only with Mr. Thompson and never directly with Petitioner
6. The subject drawings were again resubmitted on or about September 12, 1996. The permit application dated
September 11, 1996 listed Howard Thompson as the "Design Professional." This time the drawings bore the seal of John P. Kelly,
PE, but these drawings were not prepared under his supervision. However, the project drawings were eventually permitted by the
City of Greensboro based upon Mr Kelly's seal.
7. Petitioner admitted in an interview with Respondent's investigator that he did not prepare any of the design work
on this project but that Howard Thompson did it all. During a later interview, he stated that he maintained a separate office from Mr
Thompson. Mr. Thompson retained all building plans but he and Petitioner would collaborate from time to time to make sure
everything on the drawings was okay.
8. Mr. Thompson is neither an employee of Petitioner nor does he work in the same office as Petitioner.
9. Mr. Thompson considered the contractor to be his client and the project to be his project. He maintained
communication with the client and billed the client.
10. The Petitioner sealed drawings not properly designated as final or preliminary and further, neither signed nor
annotated the date of signing on each sheet.
1 1 . Petitioner has been in declining health for the last several years.
Based upon the above Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Board Rule .0701(c)(3) in pertinent part requires that the professional engineer "(s)hall not affix his signature or
seal to any engineering. . .plan or document not prepared under his direct supervisory control. Direct supervisory control (responsible
charge) requires a registrant or employee to carry out all client contacts, provide internal and external financial control, oversee
employee training, and exercise control and supervision over all job requirements to include research, planning, design, field
supervision and work product review." Petitioner, for design drawings entitled "Meadowood Glen Condo's by Pierce-Roif Corp,,
Greensboro, N.C.," flagrantly affixed his seal to work not prepared under his direct supervisory control or responsible charge in
violation of Board Rule .0701(c)(3) and is guilty of misconduct in the practice of the engineering profession for this act.
2. Board Rule .1 103(b) in pertinent part requires that "(c)ertification is not required for 'preliminary work'. All other
drawings. . . shall conform to the following: . . .(4) 'The date of signing must be annotated on the original document." The requirements
for "preliminary work" are stated in .1103(a) and require that "the work is stamped or clearly marked as 'preliminary work'..."
Petitioner, for design drawings entitled "Meadowood Glen Condo's by Pierce-Roif Corp., Greensboro, N.C.," flagrantly failed to
properly sign, seal and date documents in violation of Board Rule .1103(a) and (b) and is guilty of misconduct in the practice of the
1036 NORTH CAROLINA REGISTER December 15, 1998 13:12
CONTESTED CASE DECISIONS
engineering profession for this act.
3. No evidence was presented that Petitioner affixed his seal to inadequate design documents in violation of Board
Rule .0701(b).
' 4. No evidence was presented that Petitioner affixed his signature and seal to engineering documents dealing with
subject matter for which he lacks competence by virtue of education or experience in violation of Board Rule .0701(c)(3).
5. Petitioner's continuation in the profession as a licensed engineer presents a clear and present danger to the public's
health, safety and welfare.
Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following:
PROPOSAL FOR DECISION
It is recommended that the Petitioner's license to practice engineering be revoked by the North Carolina Board of Examiners
for Engineers and Surveyors under the provisions of G.S. 89C-2 1 .
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P. O. Drawer
27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions
and proposed findings of fact and to present oral and written arguments to the agency. G.S. 150B-40(e).
A copy of the final agency decision or order shall be served upon each party personally or by certified mail addressed to the
party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. G.S. 150B-42(a).
It is requested that the agency furnish a copy to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the North Carolina Board of Examiners for Engineers
and Surveyors.
This the 1 1th day of November, 1998.
Julian Mann, 111
Chief Administrative Law Judge
13:12 NORTH CAROLINA REGISTER December 15, 1998 1037
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